Clause37
Education and Inspections Bill
4:00 pm

David Chaytor (Bury North, Labour)

I beg to move amendment No. 444, in clause 37,page 26, line 38, after ‘requirements,',insert

‘including the use ofoversubscription criteria set out in subsection(2A),'.

Christopher Chope (Christchurch, Conservative)

With this it will be convenienttodiscuss the following: Amendment No. 435, in clause 37, page 26, line39, at end insert

‘includingpractices prohibited byregulation,'.

AmendmentNo. 445, in clause 37, page 26, line 39, at endinsert—

‘(3A) Aftersubsection (2)insert—

“(2A) Theoversubscription criteria referred to in subsection (2) are to beapplied in the followingorder—

(a) children witha statement of special educationalneeds;

(b) children in publiccare;

(c) children forwhom the school is most appropriate on medical or socialgrounds;

(d) childrenwhose sibling or siblings will be enrolled at the school on the firstday of term and who permanently reside within the area from which the  school's intake is normallydrawn;

(e) children forwhom the school is the nearest appropriate school to theirhome;

(f) safe walking distancefrom the school;

(g) ease ofaccess to the school by publictransport;

(h) transfer from anamed feeder primaryschool.”.'.

AmendmentNo. 407, in clause 37, page 26, leave out line40.

Amendment No. 211,in clause 37, page 26, line 40, leave out ‘act in accordance'and insert ‘comply in allrespects'.

AmendmentNo. 231, in clause 37, page 26, line 40, at endinsert

‘; and after“code” insert “and in the case of a localeducation authority to establish and maintain a local admissions policyin compliance with thecode”.'.

Governmentamendment No.427

Amendment No. 232,in clause 38, page 27, line 17, leave out ‘, and' andinsert—

‘(ba) in the case ofan admission forum for the area of a local education authority inEngland, to advise the authority on the local admissions policyestablished and maintained by the authority under section 84(3),and'.

AmendmentNo. 233, in clause 38, page 27, line 18, leave out from ‘forum'to ‘exercising' in line 19 andinsert

‘such as is mentioned inparagraph(ba)'.

AmendmentNo. 234, in clause 38, page 28, line 11, at endinsert—

‘(5C) An admissionforum shall, in the exercise of its functions, have regard to anyadmissions policy of the local education authority responsible formaintaining schools in the area for which the forum isestablished.'

David Chaytor (Bury North, Labour)

I shall speak to amendments Nos. 444, 445, 211,231, 232 and 234. I pay tribute to the work of the Secretary of Stateand her ministerial team in respect of the care and attention to detailthat they have given to the code of practice for admissions. Admissionswere raised during the initial discussions on the White Paper. It isimportant to remember that before the publication of the White Paper,few people in England, and certainly few Members of this House, knew ofthe existence of the code of practice for school admissions. Perhaps afew head teachers, governing bodies and parents in parts of the countrywhere competition for pupils is at its fiercest knew about it, but thecode of practice was not, it is fair to say, a high-profile document.It is extremely interesting to note how it has moved to the top of theagenda in the past six months. I pay tribute to the ministerial teamfor the seriousness with which they have taken some of the criticismsof the White Paper’s implications foradmissions.

I welcomethe publication of the skeletal code—the document that theMinister circulated at the end of last week. If it is to form the basisof the new code, it will be a great improvement on the previous code.The status of the code is crucial. As hon. Members will know, theprevious code only required admission authorities to have regard to itsprovisions, whereas the Secretary of State and her colleagues have been adamant that the new code will have binding force and admissionauthorities will be expected to act in accordance withit.

That is aparticularly important step forward, given the recent ICM Headspacesurvey of head teachers, which was published last week and showed thatabout a quarter of head teachers admitted that they did not follow theprovisions of the code in establishingtheir admissions policyor conducting admissions procedures. If a quarter of head teachersadmit to that in a survey, we can reasonably assume that other headteachers do not follow the code but were not prepared to admit to it.That is an indication of the scale of the problem, which becomes abigger problem in the case of schools that are their own admissionauthorities.

I wantto make a few comments on the new skeletal code before speaking to theamendments. It is helpful that the new code refers to randomallocation. I am not sure that that was in the previous code; itcertainly seems to have a higher profile now. Random allocation, whichis used in a number of countries and accepted as quite normal, deliversthe fairest and most objective results. It is a comparatively new ideain the United Kingdom, but its inclusion in the code is welcome. Weshould discuss that further, as we should the concept of anonymisedadmissions systems, in which the Liberal Democrats have taken aninterest.

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

On a point of information, random allocation was inthe draft code that was published last year and withdrawn just beforeChristmas, in paragraph4.19.

David Chaytor (Bury North, Labour)

I am grateful for that correction, but it doesnot in any way undermine my point that random allocation is an ideathat needs to be debated far more widely. The concept of anonymisedadmissions does not appear in the code, but is something that theGovernment should take more seriously than they have to date.

Some points in the draft codeneed further consideration. Sibling policy and the distinction betweensibling policy in schools that select by ability, whether wholly orpartly, compared with sibling policy in schools that select by aptitudeis riddled with anomalies. It is conceivable that a school thatselects10 per cent. of its pupils by ability in foreignlanguages could sit next door to a school that selects 10 per cent. byaptitude in foreign languages, yet the sibling link could not be usedas a criterion for admission to the school that selected by ability,but it could be used by the school that selects by aptitude. Ihighlight that point of detail to show the small anomaly in siblingpolicy.

The subjectof supplementary application forms is also worth highlighting. The useof supplementary application forms by certain schools to elicit moreinformation about the individual pupil, their family background, theirgeneral level of ability and the level of cultural capital in the homeis one of the most regrettable forms of covert selection that routinelytake places in some schools that are their own admission authorities.That needs to be eliminated. I can see no  reason why supplementary application forms should be used, because thecode suggests that they should be used only where it is necessary toproduce a letter of verification of the pupil’s faith. Thatcould be done, of course, by attaching the letter to the initialadmissions application form.

I welcome the text in paragraph1.27 in respect of faith schools and the encouragement of diversity.Again, the Government have taken seriously the criticism of theadmissions policies of some faith schools that are reluctant to opentheir schools to children living in the immediate neighbourhood. We allaccept faith schools’ right to select children according tofaith, but that must be balanced against the need for them not to becompletely exclusive and to be more open to children and families ofother faiths.

Thefinal aspect of the new code to which I want to draw attention is thematter of first preference first and the recommendation that inselective areas parents who apply to selective schools for places fortheir children should be able to find out the result of the test forthe selective school before they submit an application to anon-selective school. Oddly, the section of the code about firstpreference first describes it as poor practice in selective areas butgood practice in non-selective areas. It is hard to see how a procedurecan be both good and poor practice. The real source of the problem isthe existence of selection. If there were no selection, firstpreference first would be good practiceeverywhere.

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

I amsure that the hon. Gentleman wants parents to have as much informationas possible before choosing a school for their child. Surely thatapproach would favour their having the information in advance in aselective area, where they might want to opt for the local grammarschool if their child had achieved the sort of results that would getthem there. That does not seeminequitable.

David Chaytor (Bury North, Labour)

The difficulty is that, although the generalprinciple of parents having as much information as possible isobviously right, there is an issue in whether the information availableto one group of parents can adversely affect another group ofparents’ chances of obtaining places for their children in theirpreferred school. Very often where first preference first is used,parents whose children are submitted for the 11-plus test but do notpass it get a second bite at the cherry by seeking a place for them ata non-selective school, at the expense of other children whose parentsdid not submit them for the test, either because of a principledobjection to testing or because they did not think that their child hada cat in hell’s chance of passing the test. It is a question offairness: parents whose children happen to be in the upper abilitybands get a greater chance of securing their first choice of schoolthan parents whose children happen to be in the lower ability bands.The parents of the academically brighter children get two bites at thecherry.

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

I am grateful to the hon. Gentleman for giving waya second time, but surely I have misunderstood him. Surely he is notsaying that  children should be disadvantaged because their parents put them in forthe 11-plus. In the scenario that he describes, the child who did notget through the 11-plus and whose parents did not opt for the schoolmight not get a place at a local secondary school, because theirparents put them in for the 11-plus. It would be monstrous to usechildren as pawns inthatway.

David Chaytor (Bury North, Labour)

No. I am saying that the same procedure shouldapply equally to all parents. That is precisely what the High Courtjudge said in the case of the adjudicator’s decision on Wirral.If my memory serves me correctly, the local authority was subject to anobjection from a group of the non-selective schools about the practice.The matter was referred to the adjudicator, who made a ruling in favourof the non-selective schools—against the use of first preferencefirst—and that ruling was endorsed by the High Court judgmentwhen the local authority took the matter tocourt.

That brings meto my final point on the specific issues relating to the code. Will theMinister tell us how the ruling in the Wirral case affects theprovisions in the code endorsing the use of first preference first inselective areas? As far as I can see the code seems to contradict theruling of the High Court judge, but I may have missedsomething.

James Clappison (Hertsmere, Conservative)

The hon. Gentleman hasobviously looked into the matter in some detail. I am sure that what hesays about the judgment is right, but he will know that there are oftendifferent reasons for judgments. Will he assist the Committee bytelling us the name of the judgment in the case involvingWirral?

David Chaytor (Bury North, Labour)

As far as I am aware it is popularly known as theWirral judgment, just as the Greenwich judgment is popularly known asthe Greenwich judgment and the Rotherham judgment as the Rotherhamjudgment. If my memory serves me correctly, the case went to court in2000-01. However, the hon. Gentleman will find details of the originaladjudicator’s decision on the website of the schoolsadjudicator.

I turnnow to the amendments that stand in my name. Amendments Nos. 444 and445 simply reiterate the arguments in favour of spelling out acceptableadmissions criteria in the Bill. Amendment No. 445 suggests a set ofacceptable criteria and the order in which they should be applied, andthose criteria are based on the recommendations in the SelectCommittee’s 2005 report. The purpose is to open up the debateand invite the Minister to comment on the merits of building a list ofacceptable criteria intothe Bill.

Amendment No. 211 would deletethe words “act in accordance” and insert the words“comply in all respects” and is designed to probe thefull meaning of those terms. Previously, schools merely had to“have regard to” the code, and we now have a fullknowledge of the limitations of that phrase. Individual schools  could legally ignore the code and argue before the adjudicator and thecourts that they had had regard to its provisions, but had chosen toignore them, and it was perfectly acceptable for them to do that. Itherefore welcome the fact that the Bill includes the phrase“act in accordance with”, but I am interested in teasingout why it does so when the new skeletal code uses the words“comply with”.

Amendments Nos. 231 to 234raise the possibility of individual local authorities establishingtheir own admissions policies and therefore building a local consensuson what constitutes good practice in the context of the national code.Again, that is entirely in keeping with the spirit of localauthorities’ new responsibilities in the Bill, whereby they willhave to play a greater strategic planning role and do far more to driveup standards in all their schools. They will also be involved inco-ordinating admissions procedures and in shaping the principlesunderlying admissions systems. The amendments would strengthen thatlocal authority role. They would also give a voice to the admissionsforum—the representative body of all schools in the localauthority area—so that it can express an opinion on theauthority’s admissions policy.

There is merit in theamendments because we must move away from the situation that prevailsin many, although not all, parts of the United Kingdom. In those areas,admissions policy is a nightmare for parents, head teachers, governingbodies and local authorities, which must administer the policy, becauseof the intense competition between schools for the most able and bestmotivated pupils. There is probably an emerging consensus in favour ofa change of direction, to which my amendments wouldcontribute.

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

We have now reached the admissions code clause,which it would be difficult to describe as anything other thanprescriptive—indeed, the only other way to describe it would bevery prescriptive.

The starting point to the wholesaga is section 84 of the School Standards and Framework Act 1998,which introduced prescription by stealth. Itstates:

“TheSecretary of State shall issue, and may from time to time revise, acode of practice containing such practical guidance as he thinksappropriate”.

Itcontinuesnon-prescriptively:

“Thecode may include guidelines setting out aims, objectives and othermatters in relation to the discharge of their functions under thisChapter”.

Then followsthe famousphrase:

“Itshall be the duty of...a local education authority, or thegoverning body of a maintained school...to have regard to anyrelevant provisions of thecode.”

Clause 37 ofthe Bill replaces thephrase:

“a code ofpractice containing such practicalguidance”,

with the moreprescriptive phrase:

“acode for school admissions containing suchprovision”

as theSecretary of State thinks fit. And of course it replaces the looser,“have regard to”, with the dirigiste wording, “actin accordance with”.

As everyone knows, the clausewas introduced to the Bill as a result of pressure from the Labour leftand following the Secretary of State’s letter on 6 February tothe chairman of the Education and Skills Committee, in which shesays:

“As youknow it has always been our intention that the Code of Practice onadmissions should have real force.”

Shecontinues:

“we areconcerned that recent legal judgements may have weakened the perceivedforce of the Code, so we will close the legal loophole so thatadmission authorities must “act in accordance” with it,rather than having to have “regard” toit.”

The Government wantthe code to have “real force”—the language ofprescription if ever there was. Of course, the truth is that all sidesin education debates are equally prescriptive when it comestotheir own principles and priorities—including theLiberals. Their amendment No. 435 would add to subsection (3), whichitself is very prescriptive, the phrase:

“including practices prohibited byregulation”.

Prescriptionpiled on to prescription. So let no one say that they are immune to thecharge of prescription.

I am happy to see syntheticphonics incorporated in the national curriculum; if that is perceivedas prescriptive, so be it. I believe that it will transform the lifechances of hundreds of thousands of children and ultimately lead tomuch higher standards in our education system. The Government want toprescribe to the minutest level of detail in their code of practice onschool admissions—the last draft before the skeletal code waspublished ran to 77 pages. For example, they want citizenship to be acompulsory subject up to the age of 16, whereas I believe that a modernforeign language should be compulsory up to that age. No one shouldfeel excluded from the charge: through amendment No. 211, the hon.Member for Bury, North (Mr. Chaytor) wants to make clause 37 even moreprescriptive by replacing the very prescriptive phrase, “act inaccordance”, with the extremely prescriptive phrase,“comply in all respects”.

One may see how prescriptivethe code is to become under the clause by looking at the wordingofMr. Justice Jackson’s judgment in the London Oratoryschool case, which involved the governing body of that school and theschools adjudicator. Mr. Justice Jacksonstated:

“Let mefirst consider the statutory effect of the Code.Section 84(3)of the 1998 Act imposes an obligation, first on the Governors of theOratory School and then on the Adjudicator ‘to have regard toany relevant provisions of the Code’. The phrase "to have regardto" means to take into account. It does not connote slavish obedienceor deference on everyoccasion.”

Through theBill, the Government want to achieve, in the words of ajudge,

“slavish obedienceor deference on everyoccasion”.

That is prettyprescriptive.

TheGovernment’s approach on admissions contrasts sharply with theirapproach to other issues of equal importance. When we discussedamendmentNo. 12 to clause 3, the Minister gave a number ofreasons for why it was inappropriate to impose guidance on localauthorities. Shesaid:

“Eachcommunity and school is different. It is right that, within a frameworkset out by the Secretary of State, local  authorities should be able to determine their own arrangements to makesure that they work for their parents and theircommunity.”

She alsosaid:

“Theguidance cannot be exhaustive, as it would be impossible to anticipateeach type of representation that parents mightmake.”

Shecontinued:

“Wewant to ensure that local authorities have sufficient flexibility torespond to local needs when setting up theirarrangements.”

Later, shesaid:

“Whenwe are recommending good practice, it goes intoguidance andit is for local bodies to take it into account sensibly in their localsituations.”—[Official Report, Standing CommitteeE, 30 March 2006; Column Numbers152-153.]

I know that guidanceis not quite the same thing as a code, but the concerns that theMinister expressed apply just as much to a local authority or schoolsetting out its admissions criteria as they do to the consideration ofparental representations.

Let us return to the Secretaryof State’s letter of6 February and the two assertionsshe made to justify her concessions. The first was that it was alwaysthe Government’s intention that the code ofpractice “should have real force.” I looked in vain inthe White Paper for any reference to that. There was certainly noreference to the phrase “act in accordance with”. Thenearest that I could find was paragraph 3.22 on page 46, whichstates:

“Noone approach towards admissions will work inallcircumstances. This is why we want to ensure that allself-governing schools...are free to use the approach to fairadmissions that they think will best meet their local circumstances, aslong as it is compatible with the Admissions Code.”

All the radio, television and newspaperinterviews given by the Prime Minister and the SecretaryofState between the publication of the White Paper in October2005 and the concession letter of 6 February this year categoricallyruled out the code of practice having any more statutory compulsionthan it had already. On the “Today” programme of 20January, the Secretary of Statesaid,

“Well,there’s a lot of misunderstanding about this because the code ison a statutory basis and it is enforced by the adjudicator bylaw.”

The Prime Ministersaid at his press conference on23January,

“Ican’t agree, for the reasons we have given on many occasions,that this code becomesstatutory.”

Then, on 6February, the Secretary of State conceded that the code would becomestatutory and that a legal loophole would be closed. It is clear thatit was not always the intention to make the admissions code asprescriptive as clause 37 makes it.

Amendment No. 407 would removesubsection (4), which changes the legal requirement from “haveregard to” to “act in accordance with”. It isintended to put the Bill back in line with the vision set out in theWhite Paper, which both the Secretary of State and the Prime Ministerdefended until, overwhelmed by the extentof the Labourrebellion, they caved in on 6 February. The second slightly misleadingimplication in the6 February letter is that the change ofheart was prompted by “recent legal judgments”that

“may have weakenedthe perceived force of the Code”.

The implication is that those judgmentsoccurred after the publication of the White Paper in October 2005,hence the need for a last-minute change of mind. However, the case ofthe London Oratory school was decided on 17 December 2004, some 10months before the publication of the White Paper. That is the drivingforce behind amendment No. 407. If that amendment is not successful, wewill oppose the clause in principle, because we want to return the Billto its original vision.

The code is far tooprescriptive and reflects the left’s obsession with admissionsrather than standards. It is rather like the left’smisunderstanding of economics: they think that wealth is of a fixedquantity and that what is important is how it is distributed, but theyfail to understand that wealth is dynamic, that it is the aggregate ofhuman endeavour, creativity and innovation, and that its very creationcan be hindered or eliminated by extreme measures to redistribute it.So it is with school places.

As the White Paper says atparagraph3.25:

“Werecognise that no form of admissions arrangements can increase thenumber of places at an oversubscribed school. This is why we arecontinuing to increase the number of good schools and the number ofplaces in goodschools.”

The obsessionof everybody who is interested in education policy should be thecreation of more schools rather than the allocation of the scarceresource of the good school places that do exist. Shifting out of agood school one set of children and replacing it with another set doesnothing to raise standards overall: it merely replaces one injusticewith another. Our obsession and focus should be on why23 percent. of secondary schools are underperforming and a similar proportionare coasting.

Theintake of a school is largely irrelevant if there is extensive setting,where children are set according to theirability.

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

I have heard the hon.Gentleman say that several times, but the only evidence that he hasgiven is from a particular school in Telford. Has any other evidence orresearch to back up thatassertion?

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

That intake is irrelevant? Of course. What mattersin schools that achieve high standards is good leadership, goodteaching and setting by ability. There is plenty of research,especially from the United States, showing significant increases inlevels of achievement when children are set according to their ability,particularly at the top end of the ability range. At the lower end ofthe range of academic ability, there are no falls in achievementlevels, but there is a slight rise in self-esteem, because for thefirst time those children are helped to learn by being given the spaceand time to acquire knowledge, not humiliated by being taught in aclass of mixed abilities, where the brighter children seem to know theanswer and want to movefaster.

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

Has research been done that demonstrates thatsetting overcomes the problems related to intake? I hear the hon.Gentleman’s views about setting helping to drive up standards,but do the results of any research show that setting overcomes theimpact of intake?

Christopher Chope (Christchurch, Conservative)

Order. The debate is about admissions rather than setting.

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

It is those who are obsessed by admissions who need to make the case. I have cited a number of schools with different intakes that achieve different results. There is no causal connection in the schools that I have cited between intake and achievement. There may well be a causal link between the school and its results in absolute terms, but intake is irrelevant to the achievement of a school. What matters is that every ability type of child who enters a school is stretched and that their educational attainment is raised to the highest level that can be achieved. Whether a school has a high proportion of one level of intake or another is irrelevant if those children are set according to ability in separate classes.

David Chaytor (Bury North, Labour)

If the Conservatives believe that intake is irrelevant, why is the hon. Gentleman arguing so forcefully in favour of schools’ rights to determine their own intake?

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

Because they may have other reasons, based on ethos, for wishing to influence their intake. They may wish, for example, to select 10 per cent. of their pupils based on a good aptitude for maths. Faith schools may wish to establish their ethos by ensuring that their intake is of children who have a commitment to a faith. There are all kinds of reasons of flexibility to enable schools to pursue their own ethos.

I am not as obsessed by those issues as some people on the right of politics, however. I think that we need to get away from ideological positions on the right and the left, because what matters is what happens in a school. High levels of attainment can be achieved, regardless of the ability range of the intake, provided that children in the school are set according to their ability.

James Clappison (Hertsmere, Conservative)

There is a debate to be had about the effect of intake, but before my hon. Friend moves on, will he agree that, in areas where the schools’ intake is predominantly of children from low-income groups because that is the nature of the area and there are no people of a different description, a mechanistic approach to intake, in which intake delivers everything, risks leading to low expectations for those schools? Because the admissions are all in accordance with socio-economic groups, low standards are tolerated and children are condemned to low expectations—

Christopher Chope (Christchurch, Conservative)

Order. That is far too long for an intervention.

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

My hon. Friend makes a good point. If people obsess about admissions, it leads to low expectations. They will claim that because their school’s admission is of X or Y type they do not have to excel and achieve as schools in a different area with intakes A and B might have to.

In private discussions with Labour Members about schools such as the Thomas Telford school in Telford, which has a banded intake based on the national ability rating, I am told, “Oh, but they will select the  top end of each of the nine bands.” One cannot win. Whenever one demonstrates that a school is achieving brilliantly because of other factors, one is told that it is fiddling within the bands. According to the left, there will never be a perfect intake. Even when all the points in the code are achieved in every school, it will not be perfect; and similar reasons will be found why the intake is not quite right in those schools that are still underperforming.

It is not admissions that make a school good or bad; it is leadership, the quality of its teaching, its discipline, its ethos, and the rigour with which academic and other subjects are taught there. That is what determines a good school, and there are plenty of examples of schools with difficult intakes that achieve far higher academic standards and better educational attainment than schools in the leafy suburbs that have none of those difficulties. Performance is not wholly determined by admissions. We need to get away from that obsession and start focusing on what determines the quality of education.

To return to my argument, in his speech on24 October, the day before the publication of the White Paper, the Prime Minister said:

“Local authority efforts to create equity often produced deadening uniformity, with child-centred learning and a rigid adherence to mixed ability teaching too often failing to raise expectations and meet basic standards.”

He was absolutely right; I could not have put it better myself. There is a growing consensus among mainstream politicians of the centre left and centre right about how to tackle the woeful underperformance of too large a section of our primary and secondary education system.

What of the code itself? We are grateful to the Minister for circulating copies of the skeleton school admissions code. It is a pity that it is still in skeleton form, but having read it over the weekend I am content that goes no further—at least, not in any material way—than the draft admissions code that was withdrawn before Christmas.

I am pleased that, like the draft code, the skeleton code regards first preference first admission arrangements as core practice. At paragraph 2.3, it states:

“Before adopting it, admission authorities should accordingly consider carefully the impact the use of this criterion will have on social equity in the area and on parents’ ability to express their real preferences for the schools they would like their children to attend.”

I believe that first preference first schemes are too complex and involve too much risk assessment for parents. If schools give priority to those who put their school down as No. 1, then parents have to assess the likelihood of their child getting into the first preference school. If the likelihood is less than 50 per cent., the temptation will be to for parents to put their second preferred option first; otherwise, and the child could end up at the fourth or fifth choice school. Equal preference schemes are much fairer, as parents are asked to rank schools in order of preference, with all preferences being considered at the same time and with equal weight. If two or more schools offer a place to a child, the school higher on the list of preferences is the one that will offer a place.

The skeleton code goes on to say that first preference first arrangements

“can create particular difficulty where there is also an element of selection by ability or aptitude.”

The hon. Member for Bury, North referred to that provision. I agree with that, as more and more schools are acquiring specialist status and it is possible that an increasing number will select up to 10 per cent. of pupils on the basis of their aptitude in certain specialisms. Paragraph 2.3 of the skeleton code is therefore clearly opposed to first preference first criteria, so I am slightly baffled by paragraph 2.4—that, too, was mentioned by the hon. Gentleman—which states:

“Where all admission authorities in an authority with no selection by ability decide to adopt an ‘first preference first’ coordination scheme, this is acceptable practice.”

Will the Minister explain how paragraph 2.4 is compatible with paragraph 2.3, which clearly states that the use of first preference first criteria is normally considered to be poor practice?

The current code of practice, which was issued in February 2003, states at paragraph 3.20 on page 14:

“In those areas where grammar schools exist, parents should be asked to express school preferences before they know the outcome of selective tests.”

That was grossly unjust. It meant parents had to assess the risk of their child not passing the 11-plus. It was a gamble to put the grammar school first. That was particularly risky in a first preference first system. The argument for that approach was stated as follows:

“Adjudicators have consistently held that to delay the expression of preferences until parents interested in grammar schools know whether their children do or do not meet selective schools’ entry standards is unfair to other parents who want a place only at a non-selective school or schools.”

That is the argument advanced by the hon. Member for Bury, North. It is absolute nonsense and an example of the views of schools adjudicators, which makes clear the reason why an appeal process against their decisions is so important.

The real reason for the approach was to undermine grammar schools by the back door and, as such, it was wrong. Thankfully, the Government share our view, and the skeleton code, like the draft code that was published last year and then withdrawn, states at paragraph 2.20:

“It is good practice for grammar schools and other schools which are permitted to use selection by ability or aptitude, or their admission authorities, to ensure that parents are informed of the outcome of entry tests before they make their applications for other schools.”

In other words, parents will have the 11-plus results before expressing their preferences in respect of a secondary school for their child. Common sense prevails. It is just a pity that the other, absurd approach will have been in place for three years before being replaced. I wonder who advised the Government on the original draft of that paragraph of the current code and what he or she is providing advice on now.

I am concerned about aspects of the skeleton code. The first relates to home-school agreements. Paragraph 1.10 on page 5 of the code states:

“Home-school agreements are a useful means of promoting greater involvement by parents in their children’s education. However, they should be signed after a place has been accepted  at a school as some children could be disadvantaged if their admission was dependent on an agreement.”

As the code says, section 111 of the School Standards and Framework Act 1998 makes it unlawful for admission to a school to be conditional on a home-school agreement signed by the parents. I see no reason why such contracts should not be a condition of entry. The overwhelming majority of parents would be happy to sign such an agreement. As for the parents who refuse to do so, it is important that they know from day one, whatever school they send their child to, where the boundaries are and what is expected of their child. Parents are in favour of home-school contracts, but most parents believe that they are not worth the paper they are printed on. That is because of provisions such as the one that I have mentioned. We need to have much higher expectations of parents about the behaviour of their children in schools. That is what parents want and it is what teachers want, so we are very—

Christopher Chope (Christchurch, Conservative)

Order. We shall discuss a new clause on those contracts later.

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

I understand that, Mr. Chope, and I will move on. I raised the issue because it is dealt with by the skeleton code that we are debating in relation to clause 37.

My second concern relates to the provisions on school uniforms, which appear to be a new addition to the code. There is nothing in paragraph 1.21 and1.22 of the skeleton code with which one can disagree per se. The skeleton code states:

“School uniform plays a valuable role in contributing to the ethos and setting the tone of a school.”

It continues:

“Governing bodies can help limit the expense of uniforms by ensuring that the uniform chosen is widely available in high street shops or on the internet rather than from an expensive sole supplier.”

Who can disagree with that? Uniform is very important to a school, and according to the heads of some high-performing secondary schools that I have visited, it is important that the uniform includes a blazer, shirt and tie, rather than the sweaters, sweatshirts and polo T-shirts that became the fad in comprehensive schools in the 1980s. [Interruption.] I am merely citing the view of heads whom I have met. In their view, if children are dressed like primary school children, they tend to behave like primary school children, whereas what is needed at secondary school is for children to become young adults.

When I go to a secondary school whose uniform includes a blazer, I ask about the cost of them to parents. In one secondary school in the poorest part of the poorest part of London, where blazers are compulsory, the head teacher said that the cost of a blazer does not present a problem, and for the few for whom it is a problem blazers are provided out of school funds. My concern is that even though the wording is benign, including a paragraph about uniform in the code may send the message that school uniforms are to be regarded as a way to engineer a more middle-class intake and are, therefore, to be  discouraged. It would be helpful, therefore, if the Minister were to allay that fear and emphasise the Government’s support for school uniforms as part of a range of methods to inculcate an ethos and high standards of good behaviour.

I wish to use two examples to highlight one final issue arising from the code. Some commentators have highlighted the wider, less technical wording of the part of the skeleton code that concerns itself with social fairness. It was not in the previous draft, nor is it in the current code. For example, at paragraph 1.15 it says that

“Admission authorities and governing bodies must ensure that their admission arrangements and other school policies are fair and do not disadvantage, either directly or indirectly, a child from one social or racial group or those with a disability or a child with special educational needs”.

I see absolutely nothing wrong with such an exhortation. At paragraph 1.27 it says that

“Admission authorities should analyse information about their intakes, and where possible their applicants, to find out whether they attract a wide range of families or whether their school fails to attract all sections of local communities.”

There is nothing unduly perturbing about such aims, but will the Minister explain what that will mean in practice and whether it will interfere with the code’s clarity, which is the overwhelming priority?

Annette Brooke (Children & the Family, Cross-Portfolio and Non-Portfolio Responsibilities; Mid Dorset and North Poole, Liberal Democrat)

Does the hon. Gentleman have any concerns about the high proportion of head teachers who said that they did not act in accordance with the guidance of the present admissions code? On that basis, exhortation is simply not enough.

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

The great dilemma in making public policy is between being prescriptive and allowing professionals to run schools on a day-to-day basis. There are some issues that need to be addressed by central Government. For example, whether we teach reading through synthetic phonics or with the look-and-say method is so overwhelmingly important that it should be included in the national curriculum, but matters such as admissions should be left up to the professionalism of head teachers.

I do not have such a jaundiced view of the ethics and professionalism of the head teachers in this country as to think that they will manipulate their intakes in an unethical way to massage their results. I have not spoken to head teachers who say that that is what they do and I have not met any head teachers whom I suspect of doing that. I have much higher regard for the head teachers of this country, and from the section of the Committee that seems to talk about localism at great length, it is surprising that on certain issues, the Liberal Members are as prescriptive—in fact, on this issue, more prescriptive—than the Government. It goes back to my earlier point that prescription is something of which we are all guilty in education debates. Whether we are prescriptive on one issue or another just depends on one’s priorities and principles. We must be honest about that.

On the schools admissions code, the position in the White Paper was the right one. I am happy for there to be a code, but it should not be as prescriptive and detailed as the full version of the code that was  published before Christmas. It should not be enshrined in legislation, with draconian words such as “act in accordance with”. We should leave those issues to the professionalism of head teachers who, I believe, do not want to bring in all kinds of selection methods by the back door in an unethical or unprincipled way.

I have taken up enough of the Committee’s time to outline our concerns. The approach to the admissions code is one example of the Government’s giving unnecessary concessions to the left to get the Bill through Second Reading and Third Reading. It was unnecessary, because the Bill was always going to have the support of Conservative Members, and I hope that the Minister will agree with us and try to restore the Bill, in this and in other respects, to the original vision and judgment of the Secretary of State and the Prime Minister.

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

We tabled amendment No. 435 to provoke a debate about what the Government would consider to be unacceptable in terms of admissions policies. Many of the issues have been dealt with in the code, so I shall take the opportunity to make some general comments about the code and its enforcement. We have always had considerable concerns about giving schools more power to control their own admissions. Everybody who has provided evidence, from the Sutton Trust to Rebecca Allen at the Institute of Education, has found that giving schools greater freedom on admissions tends to make them—surprisingly, perhaps—far more socially segregative than geography or house prices might suggest.

As the hon. Member for Bury, North has already stated, a recent survey in The Guardian showed that25 per cent. of head teachers admit to bending the rules on admissions in order to cherry-pick. They were specific about why they did it. That is not surprising when there is so much pressure on schools to raise their GCSE, A-level and SATs results because of league tables. Therefore, we would strongly welcome the inclusion in the Bill of a statement that it is obligatory to act in accordance with the code, not merely to have regard to it. The Conservatives have said that that is too prescriptive. I would argue that this is a similar case to the anti-discrimination legislation, which we and the Government favoured and even the Conservatives eventually came to support. The principles at issue are fair access and equity, and they are covered by the code. This is not about prescriptive policy on what happens in the classroom; it is about ensuring that every child has access to the school of his choice.

There are some welcome additions to the code. It deals specifically with covert selection—for example, the tendency of schools to use knowledge of the family in order to select out difficult families. I very much agree with the comments of the hon. Member for Bury, North on the supplementary application forms. I cannot understand why they might be needed, and shall be interested to hear the Minister’s response to him. Although it is clear what is not acceptable on the forms, it is not clear why we might still need to use them except to find out whether somebody is of a particular faith.

Paragraph 2.11 gives a helpful explanation about what is acceptable in relation to faith schools. It states clearly that it should be adequate to ascertain that a family is practising, and that it is not necessary to test its religious commitment. That is a point of concern, and it touches on the other point about supplementary forms. In most Catholic churches—my church is a prime example of this—the priest requires a family to have an interview before he will write a report to say whether its members are eligible for the primary or secondary school. I do not know what happens in that interview. It will be interesting to learn what discussions the Government have with the Church representatives on the back of the code. It is important to stamp out any practice that involves a great deal of testing of people’s religious commitment, because it is not clear whether that would make other forms of social segregation acceptable.

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

I want to be clear about what the hon. Lady means. Is she saying that she is against some kind of test of people’s commitment to the ethos of a faith school, or that the test must be a certain one—the people must be not just on the way to heaven but already saved? They must be real Christians or not Christian at all. Is that the gist?

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

I was saying neither of those things. It is not clear to me why a Catholic priest requires an interview to find out whether a family is practising. Surely he should know who attends his local church. My question is, what happens during that interview? Is the family tested on how committed it is to the religion? If so, why? It is clearly laid out in the code that that would be unacceptable. Or is it a means of applying another form of social segregation? I am uncomfortable with that. The Government need to explore the matter with the various religious bodies when the code is being considered.

The code also touches on more subtle aspects of selection—such as expensive uniforms and school trips that tend to put off children from poorer families—which is very welcome. I was pleased to see the section on home-school agreements. Liberal Democrats very much agree with the Government that it is unhelpful to use them as a means of excluding children prior to their getting into a school. It is an unfair method of selection.

We have some concerns about the language and implications of the code, which I want to test with the Minister. For example, various issues are described as “poor practice”. I am not clear about the implications in respect of adopting poor practice. Is it forbidden or frowned upon? What would happen if a school adopted a practice that the code considered to be poor practice? Would it be enforceable and if so how?

Some aspects of the code clearly have teeth but it is difficult to see how they will be enforced. Many head teachers say that they already bend the rules, which is why new clause 4 proposes an anonymised admissions process, which may be able to remove some of the difficulties involved when schools bend the rules. Although the code clearly states that the criteria should be clear and objective, testing that out when schools fail to adhere to it would rely on a set of subjective judgments, which are very difficult to make.  The code will be very difficult to enforce in that respect. We will make more detailed comments on the matter when we discuss new clause 4.

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

I start by contesting the view, represented by the hon. Member for Bognor Regis and Littlehampton(Mr. Gibb), that pressure for the changes in the White Paper came from the Labour left. How that is defined is perhaps for another debate, but a large number of Labour Members, including me, worked hard behind the scenes to ensure that there was a reasonable compromise on the Bill. The admissions code represents the compromise that we sought; it is exactly the right way forward in regulating admissions and admissions authorities in England and Wales.

If being prescriptive is believing that the Government need to screen out prejudice from the admissions system, I plead guilty to being prescriptive. If being prescriptive is about ensuring that all children enjoy an equal opportunity to access the school of their choice and to be part of an admissions process that is administered on a level playing field, I am guilty of being prescriptive and so are many of us on the Government Benches. I believe, too, that equity and excellence belong together in the admissions systems and the education system; it is possible. The Prime Minister is right to promote excellence in our schools and that is one reason why I strongly support the Bill.

Many of the so-called prescriptive elements in the code are exactly right to screen out prejudice inthe system. The hon. Member for Brent, East(Sarah Teather) mentioned uniforms and I give the hon. Member for Bognor Regis and Littlehampton credit for recognising that the advice on uniforms is very sound. Recently, my sister, whose son is in year 6 and ready to go up to year 7, was informed by a teacher at the comprehensive school he will be going to that she has to buy the school uniform from one supplier only. That is one of the conditions for entering that school. I feel strongly that that is not fair. It puts a burden on parents with low incomes, whose children are not necessarily on free school meals, and it makes it difficult for parents to enjoy equality of opportunity in terms of their children’s education. My grandmother was prevented from going to pupil teacher training school back in the 1920s because her parents could not afford the uniform and she ended up as a steelworker rather than a teacher. We still run the risk of such things happening in 2006, so I strongly support the code’s advice on uniforms.

For the same reasons, it is important that addresses are not disclosed when admissions are considered. My mother scored higher in her 11-plus than some of the other pupils in her class. They went to grammar school, however, while she did not, and that was on the basis of their addresses. That was in the 1940s, and I hope that it does not happen now, but we need to ensure that the code guards against such a possibility. Such things even happened under the comprehensive system, and although I was recommended for a grammar stream place, pressure on numbers meant that the head teacher at my primary school decided not to place me in that stream because I lived in a council  house and other children did not. That is surely wrong and needs to be made illegal.

On children’s behaviour, we should not discriminate against a child because of the behaviour of a sibling at the school. That would clearly be unfair. Although some hon. Members will find this anecdotal, let me illustrate my point by mentioning a family that I know of. There were four boys, and three of them were well behaved, but the eldest was not—he was a problem in the school. In such a case, it would not be fair to discriminate against the other three on the basis of his behaviour.

Nadine Dorries (Mid Bedfordshire, Conservative)

I am trying to rationalise the point about the school uniform supplier. What difference would it make in terms of children’s outcomes if there were two or half a dozen school uniform suppliers at the school that your brother or other family members went to? If the school uniform is the same price wherever it comes from, what is the difference? [Interruption.]

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

I shall answer the hon. Lady’s point, although other hon. Members have already done so. The answer is simple: the uniform is much more expensive at the accredited supplier than it is at places such as Asda and Sainsbury. I do not want to get into the argument about sweatshirts, but many parents will buy a blazer as long as they can do so at a price that they can afford. That is an important point.

There are other elements in the code that we need to take seriously. They include marital status and not allowing schools to use parents’ financial donations and relationships between governors, school staff and parents as a basis on which to make admissions decisions. Those are fundamental points when it comes to having a credible admissions code that is based on the need to ensure fair access. It is illegal to discriminate on such grounds when offering somebody a job, and if that is good enough for potential employees—if it is right that they should be protected against discrimination based on whether they are married, whether they know somebody in the firm and whether a friend of the family has made donations to or bought shares in it—it is surely good enough for our children, too. Our children surely need protecting as much as employees do against such discrimination and against people who buy their way into schools or employment. The fundamental principle underlying the code is that equality of opportunity applies to all people—children and adults—and I hope that the Minister will reject the Tory amendments and stick with the code as it stands.

Annette Brooke (Children & the Family, Cross-Portfolio and Non-Portfolio Responsibilities; Mid Dorset and North Poole, Liberal Democrat)

I endorse Opposition Members’ comments that it is important to ensure fairness and equity. Those points have been well made and we are short of time, so I want to raise just two specific points with the Minister. I thought that it would be easier to do so now than to intervene. I am very involved with various groups of young carers—young people one or both of whose parents have severe disabilities. I should like to be assured that their needs are taken fully on board. There are, allegedly, more than 1,000 carers of  school age. It is quite a large cohort who undoubtedly find it difficult to attend school regularly and can very easily not get the best school arrangement.

Secondly, I shall raise a point that keeps hitting me every time that I read it. I absolutely agree with the thrust of the point on school uniforms, but it does seem slightly odd to say:

“Governing bodies should not seek to raise additional funds through the sale of school uniforms.”

Obviously in the case of new uniforms and the monopolistic supply they should not do so, but parents associations raise money through the sale of second-hand school uniforms which is really important for everyone concerned. It is a minor point, but it should be mentioned.

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

I shall start byspeaking to Government amendment No. 427. Given the general support forthe code that seems to have come through this discussion we shouldobviously introduce the code as soon as possible. In order to do thatfor admissions in September 2008, it will haveto be in forcein February 2007 and we will want to consult on a draft before then.The hon. Member for Mid-Dorset and North Poole (Annette Brooke) made areasonable point about carers and that is precisely the sort of issuethat needs to be considered as we consult on a full code.

Government amendment No. 427amendssection 84(1) of the School Standards and Framework Act1998 to insert an express provision to provide that a consultation thatstarts before the Bill receives Royal Assent will still satisfy thestatutory provisions for consultation. Assuming that the amendment isaccepted, we hope to start that consultation in September. I hope thatthe Committee will see that as a reasonableapproach.

Inresponding to the other amendments, let me remind the Committee that wegave a commitment to the Education and Skills Committee to strengthenthe school admissions code to make admissions fairer. Clause 37delivers on that commitment. This is not simply a mutual admirationsociety, but I know that even before it become fashionable my hon.Friend the Member for Bury, North had taken a considerable interest inthe impact of admissions arrangements. Not only in his contributionstoday, but in his work up until this point he has played an importantrole in what we have achieved on the code—as have, as my hon.Friend the Member for Sheffield, Hillsborough (Ms Smith) pointed out,many other hon. Members and many people outside the House.

I agree with the hon. Memberfor Bognor Regis and Littlehampton that what matters most in our schoolsystem is that we strengthen the leadership in governance and qualityof teaching in our schools so that more schools can respond to theindividual needs of children and be schools that parents will be happyto choose for their child. That is absolutely crucial. It is not thenunreasonable to argue that in achieving that we should also expect fairaccess to those schools with a transparent, clear and objective system.We are making these changes to admissions arrangements in order todeliver that.

As several hon. Members havepointed out, while most schools adopt good practice in their admissionsarrangements, there are still examples of unfair practices and ofoversubscription criteria that do not deliver those objectives oftransparency, fairness and objectivity. There are still examples ofadmissions practices and oversubscription criteria that candisadvantage one child compared with another. For example, we havediscussed the use of supplementary application forms. If a school asksfor information that has no relevance to a child’s application,not only might that have an impact on admission decisions, but it couldput parents off applying. That would not lead to a system in whichevery parent feels capable of expressing the preference that woulddeliver for theirchild.

Paragraphs 1.19and 1.20 of the code, about which questions have been asked, make clearthe limited circumstances in which supplementary information may benecessary. They also prohibit supplementary application forms that lookat a child’s background.

There are stilloversubscription criteria that give priority to the children ofgovernors and staff. As hon. Members have said, that is clearlyunacceptable, as are statements in schools’ literature that theyexpect a voluntary contribution from parents to support the school.Each of those practices reduces a parent’s ability to make areal choice for their children, and it is right that they should beruled out by thecode.

I shall respondto the discussion on the use of first preference first criteria. Myobjective, as that of any admissions arrangement should be, is toensure that parents can take decisions about their children based onthe fullest possible information and express a real preference. Nobodyshould argue that the admissions system should protect admissions tocertain types of school rather than others. At the heart of ourdecision making should be the consideration of what ensurestransparency and fairness to parents and children. Transparency is key,and in the selective system the 11-plus creates a unique situation. Aparent cannot know the chances of their child getting into a schoolbefore they have the test result, and therefore cannot make thenecessary decisions about theirpreference.

The otherdifficulty with having a first preference first system alongsideselection would be that those who can be confident enough to apply toselective schools would often be those with a plan B, which may involvegoing into the private system. I do not want to set up a system thatmakes it easier for a parent to express a preference for a selectiveeducation, and then opt out of the state system if that preference isnot attained. That would disadvantage those who want to express apreference for a grammar school but do not feel able to because theysee it as too big arisk.

David Chaytor (Bury North, Labour)

Does my right hon. Friend accept, however, thatthe inevitable consequence of reintroducing first preference first inselective areas is that there may well be—no, there willbe—an increase in the number of parents there who choose to goprivate, because of the larger number of children securing places inselective schools? Does she also accept that the problem of not beingable to guarantee a place in a first-preference school applies toparents in non-selective areas, unless they live in the immediate  catchment area? It is not a difficulty that applies only to parents inselective areas who choose to submit their children to the 11-plustest.

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

Of course we cannot have a system that guaranteesevery parent their first preference. We can make it more likely thatthey will get it, and we have done so through co-ordination. However,the system must enable parents to express their preferences, and givethem confidence about the way those preferences will work. My concernabout the combination of first preference first and a selective systemwhen people do not know the results before they express theirpreferences is that—I am afraid that on this I agree withOpposition Members—it benefits those parents who are willing to game in the system as opposed to those who want to express a genuinepreference.

Thereason for the distinction between the two sets of circumstances isthat first preference first, as the code sets out, is poor practicewhen schools use it to try to undermine parental preferences and whenit means that parents cannot say what they really want; however, whenall schools and the local authority are happy with a first preferencefirst scheme, and there is no selection in any of the schools, it isreasonable to give them the option to operate that system if, and onlyif, no one objects. That is a good example of the complexity of theadmissions system and the reason the code is written as itis.

In the Wirral caseraised by my hon. Friend the Member for Bury, North, the localeducation authority wanted parents to have their 11-plus results beforethey expressed their preference. The schools adjudicator ruled againstthat and the court upheld that judgment, as my hon. Friend said. Thatdoes not, however, mean that we cannot change the code, using thearguments that I have just used. The court was ruling on whether theschools adjudicator’s judgment was a reasonable judgment, not onwhether it was the only possible judgment. Therefore in answer to myhon. Friend’s question about whether we have taken intoconsideration the implications of that judgment, the answer is yes, wehave.

It is clear,not so much with respect to first preference first—which is aquirk in the system, and which it is important to workthrough—but with respect to some of the other practices that Ioutlined, that they amount to the selection of children by schoolsaccording to their parents’ background, education or ability tosupport the school. Those practices and criteria are wrong, and will beruled out by the new code, which, as hon. Members have mentioned, Ihave made available to them.

Amendment No. 407 wouldmaintain the status quo, so presumably it is intended to maintain andsupport the examples of unfair practice that I have outlined. The hon.Member for Bognor Regis and Littlehampton cannot have it both ways. Ifwe accept that there is unfair practice in the system—I thinkthat there are some examples of that—support of the status quois support of thosepractices.

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

In that case, why did the White Paper not oncemention the phrase “to act in accordancewith”?

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

As we made clear in the White Paper, ourfundamental objective was to ensure fair access to the system. Ifconcerns about fair access have emerged from the admissionsarrangements, it is in keeping with the objectives that we set out inthe White Paper that we should deal with those. Furthermore, we havemade it clear that it was always the objective of the previous code toget rid of those unfair practices; but as we set out in the letter tothe Chairman of the Education and Skills Committee, some recentjudgments brought into question the force of the code, and it wastherefore right to consider what force it had, to recognise the impactof those judgments, and to strengthen the code to bring it to the levelthat we had always intended, by means of the provisions in the Billrequiring admissions authorities to act in accordance withit.

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

Why had not the Government considered theimplications of those cases before the publication of the White Paper?The classic case relating to the issue is that of the London Oratoryschool, which was decided in December 2004. The White Paper waspublished in October 2005. Why were not the implications of that caseconsidered and the policy implications decided before October2005?

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

This is, of course, the first Bill in which we havehad an opportunity to take the action that we are taking. As I said, wewere considering the implications of the code, and alongside that wegave the commitment in the White Paper to fair access, so I think thatthe approach that we have taken isreasonable.

The hon.Gentleman can make political points about our approach, but thequestion remains: does he want to maintain the status quo because hesupports the unfair practices that I have outlined, which the code willdo away with? That is the fundamental question.

As hon. Members will see fromthe skeleton draft, the new code will contain mandatory provisions thatrule out some practices and criteria entirely. It will also containexamples of good and poor practice, which must be taken into accountwhen setting admissions arrangements. Admission authorities will haveto justify any departure from the guidance if an objection is made, andit will be easier for the schools adjudicator to enforce. That coversthe question raised by the hon. Member for Brent, East about the natureof good and poor practice.

Legislation does not have theflexibility we needto rule out unfair practices in particularlocal circumstances. Some criteria, for example, represent goodpractice in some circumstances but not in others. Giving priority tochildren who have a sibling at the school is a good example of that.That criterion is particularly helpful for parents with young children,but when it is combined with selection by ability, it would not be fairto admit siblings of pupils who were admitted by ability, as that wouldreduce the opportunities for other children.

To deal with the complexitiesraised by my hon. Friend the Member for Bury, North, the new code willmake a distinction that rules out the use of the criteria  in wholly selective schools, while describing it as poor practice inschools with high proportions of selection by ability and as acceptablewhere there is up to 10 per cent. selection by aptitude. That comesback to my arguments about the reasonableness, in certain limitedcircumstances, of selection on the basis of aptitude, and theGovernment’s view that there are not circumstances in which itwould be appropriate to select directly or indirectly on the basis ofability.

Where thecode describes a criterion as “poor practice”, theadmissions authority will have to justify its use if an objection ismade to the adjudicator. I think hon. Members will agree that thatwould be hard to accomplish in legislation. We need a code that willrule out unfair criteria and also support admissions authorities byproviding guidelines and examples of good practice that allows them theflexibility to determine criteria that are fair and promote equity inthe circumstances. I hope that that responds to the probing comments ofthe hon. Member for Brent, East in relation to amendment No.435.

I will say justone thing about uniform. I found it a bit bizarre that the hon. Memberfor Bognor Regis and Littlehampton read out various parts of theskeleton code with which he completely agreed and thought benign, buton which he nevertheless sought reassurance. I will reassure him on thesubject of uniform. The Government can clearly see the benefits of auniform in schools. I personally am strongly supportive of blazers andties in secondary schools. The point that we are making, however, isthat uniform, important though it is, should not, because of the way inwhich it is supplied, act as a disincentive to pupils to apply to aparticular school. The skeleton code makes that pretty clear.

Amendments Nos. 445 and 444,tabled by my hon. Friend the Member for Bury, North, would require theschool admissions code to include oversubscription criteria as one ofthe requirements that it may impose on admissions authorities, localauthorities, governing bodies, appeal panels and admissions forums. AsI have argued, it is important that admissions authorities have theflexibility to determine arrangements that work, are fair and willpromote equity in their local area. Circumstances might vary across thecountry and admissions arrangements will have to take account ofthose.

The problemwith amendment No. 445 is that it would require the oversubscriptioncriteria to be used in the order listed regardless of the local contextor circumstances, thereby taking away flexibility. Part of my hon.Friend’s concern is whether the code is strong enough or whetherlegislation would be better. I hope that he is reassured that althoughthere must be local flexibility, the new code will be tough on unfairpractice and criteria. Significantly, not only will it be tough, itwill be coupled with enforcement provisions that, through theadjudicator, will ensure that those unfair practices cannot be put intooperation. The combination of the clearer provisions of the new codeand the enforcement will guarantee us fairer admissionsarrangements.

I shallgive a few details on the specific criteria that my hon. Friend listed.First, criteria (a) and (b) are unnecessary because they are alreadyenshrined in law. The first would require children with a statement of  special educational needs to be given the highest priority. Section 324of the Education Act 1996 provides that where a statement names aschool, the school must admit that child. We shall include provisionsand guidelines in the new code that will ensure that children withspecial educational needs, or who are disabled and do not have astatement, are not disadvantaged in any way. We will make that clear inthe code.

The secondcriteria deals with children in public care. Again, it is not necessarybecause admissions authorities are required by regulations made underprovisions in the Schools Standards and Framework Act 1998 to givethose children the highest priority in their admissionsarrangements.

Theother criteria could be used by admissions authorities if appropriatein the local context. Many of them would be good practice and the codewill provide guidelines for their use. My problem is that they shouldnot be mandatory in all circumstances, as amendments Nos. 444 and 211would require. Admissions authorities must be allowed to determinewhich acceptable criteria they will use and in which order, so as tomeet the needs of children and parents. For example, there might becircumstances in which proximity is not the most appropriateoversubscription criteria. As has been shown by today’sdiscussion, proximity can have an impact on house prices and it ispossible that there is a disproportionate impact on, or benefit to,those who can afford to move into the immediate area of aschool.

As happenedin my constituency, there are times when different transitionalarrangements are necessary, perhaps because of a reorganisation ofschools. We need to bear that in mind and be flexible about theadmissions arrangements in particular circumstances. One of thecriteria relates to the safe walking distance to a school. In ruralareas, for example, that might not be relevant to the admissionsarrangements for a particular rural school. Another relates to the easeof access to public transport. Of course, public transport arrangementschange, as do local catchment areas and populations aroundschools.

Although onthe face of it certain criteria might appear to be fair, in relation toparticular circumstances they might not deliver the objective that Iand my hon. Friend share—that the admissions criteria, and inthis case the oversubscription criteria, is fair, objective andtransparent, and does not discriminate against pupils and parents onthe basis of their background. I hope that he will accept that I am notjust being a difficult and intransigent Minister, but that there arepractical considerations and that although I share his objectives, I donot think that his approach in the amendments would deliverthem.

Finally,amendments Nos. 231 to 234 relate to admissions forums and theirinteraction with local authorities. Forums already consider, andrightly so, how well local admissions arrangements work, and theyadvise admissions authorities about any changes that they feel arenecessary. We think that they should have an even stronger role inensuring that admissions arrangements operate fairly for all children.The Bill will give them extra powers in England to object to theschools adjudicator about the admissions arrangement of any localschool and publish reports on the way  admissions operate in the area. Later groups of amendments deal withthat.

Amendment No.231 is intended to ensure that local education authorities establish anadmissions policy that complies with the school admissions code.Amendment No. 234 would mean that the local admissions forum has tohave regard to that policy when exercising its functions. Bothamendments are unnecessary. The clause already requires local educationauthorities to act in accordance with the code, so any admissionspolicy that they adopt must be co-compliant, as must be both theadmissions arrangements of any other admissions authority in the areaand the admissions forum, which must also act in accordance with thecode.

Amendment No.231 would therefore require a local education authority to formulate anadmissions policy regardless of whether it had any community orvoluntary controlled schools in its area. It is completely within thepower of a local authority, in discussion with other admissionauthorities in an area, to come up with a common approach toadmissions. That issue has been raised elsewhere by my hon. Friend theMember for Sheffield, Hillsborough. My argument is that amendment No.231 is not necessary to ensure that that happens, and it could lead totwo different admissions policies being set up, both of which wouldhave to be in accordance with thecode.

Finally,amendment No. 232 would require an admissions forum to give advice toits local authority on whether it has complied with the code whendrawing up its admissions policy. However, admissions forums alreadyhave a role in advising admissions authorities on the fairness andeffectiveness of their admissions arrangements and the ways in whichtheir arrangements could be improved. Although we share the motiveunderpinning the amendment, it addresses a point of detail that isbetter dealt with through the changes that we will make to theadmissions forum regulations.

I hope that my hon. Friend theMember for Bury, North and Opposition Members—I am slightly lessoptimistic about that—agree that clauses 37 and 38 willstrengthen the code, enhance the role of admissions forums in Englandand, most importantly, help to support us in producing a faireradmissions system, in which access to schools that will be of a higherquality, owing to the other actions that we are taking and our reformand investment programme generally, will be open on a fair basis to allchildren. That can only be in the interests of children. I thereforehope that the Committee will feel reassured, that the amendment will bewithdrawn, and that hon. Members will support the new approach and thenew framework foradmissions.

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

This has been an interesting debate. There has been a lot of common ground and some differences. I was interested in the views of the hon. Member for Sheffield, Hillsborough, who said that if prescription gets rid of discrimination, she stands guilty. Who can disagree with that? My point is that we all stand guilty of prescription in certain aspects of education policy, and policy generally. The Bill is packed with prescriptive measures of all kinds, with a great deal of prescription on some minor things. We should hear nothing more from Labour Members  about Conservatives being over-prescriptive. Even the Liberals have been prescriptive in their views on the code and how they would like it to be enforced.

There has been considerable agreement about the code and the approach to admissions, particularly between the Minister and Conservative Members. We agree, for instance, on first preference first. Parents need to be able to express a preference and not have to engage in gaming or risk assessment in determining to which school their children go. The people who are most discriminated against by that kind of approach to admissions are those who are not familiar with the complexity of the system and who have not sat on the Select Committee on Education and Skills for several years, as the hon. Member for Bury, North has, and who therefore cannot understand the nuances and the differences between systems in different local authorities and schools. The people who suffer most from such schemes are the very people who should benefit from education and from being given the fairest chances, and we want to ensure that they receive them.

The Minister is right that those who can gamble and take a risk are those who can afford to have a plan B, whereby they opt out of the system if the gamble does not pay off, so I agree that the system in force under the current code is wrong, because it is wrong for parents to have to submit their preferences for a secondary school before receiving their children’s 11-plus results. That is a mean-spirited approach to the admissions process, which that was clearly designed to undermine the grammar school system, and I was surprised by the hon. Gentleman’s view that parents who submitted their children for the 11-plus test were somehow less worthy to send their children to the best-performing non-grammar school in the area, because they had committed the unpardonable sin of trying to get their children into a grammar school.

Nevertheless, there has been considerable agreement. The Opposition are relaxed about the existence of a code, and contrary to what the Minister implied we do not want to see any unfair practices—it is not the our intention to encourage schools to manipulate the admissions system to improve their results. Publication of league tables is the policy of the Labour party in government, and it would be the policy of the Conservatives in government too. League tables exist solely to improve results, so we want them to be used to improve standards of education. They are not a type of football league table that should be manipulated by hook or by crook to get a school further up the table; they exist solely to encourage a high quality of education in schools, and head teachers should behave, and do behave, accordingly.

We do not believe that head teachers are engaged in unethical conduct. We believe in the professionalism of this country’s head teachers, so there is no need to be too prescriptive in the drafting of clause 37. The judgment of the Prime Minister and of the Secretary of State should be unclouded by the problems of managing the Labour party, which is why we believe that the clause should revert to its form before the concessions of 6 February—the day on which the Government published their response to the Education and Skills Committee.

I admit that the point is a political one, but it is politics that have led the Government down this path. Until all the pressure from the hon. Gentleman and other hon. Members, the Government had no intention of changing the law to make admissions authorities act “in accordance with”, because they were perfectly relaxed, as are we, with the phrase “to have regard to”. Wherever there has been a concession as a result of that pressure, we want to restore to the Bill the vision that the Prime Minister and the Secretary of State had before concessions were made, and we shall press amendment No. 407 to a vote.

David Chaytor (Bury North, Labour)

I should like to continue the debate briefly on the question of the first-past-the-post system—sorry, I mean first preference first; I was thinking of my ten-minute Bill that will come before the House in June.

As I see it, it is not possible for any parent or group of parents to avoid what the hon. Gentleman described as gaming and risk assessment. The difficulty of supporting first preference first in those areas that select is that it gives protection to a certain group of parents against gaming and risk assessment—protection that is not provided to other parents. The fact of the matter is that the protection given to the parents of the most academically able children is not extended to the parents of the less academically able. That is the heart of the matter. All parents should be treated equally, should be in the same position, and should have to do the same amount of gaming and risk assessment, given the situation in which we find ourselves.

I was grateful for clarification on the status of the Wirral judgment, but of course there is supreme irony in the Government defending the fact that they have not incorporated it into the legislation or the code on the grounds that they merely had to have regard to it and were not required to act in accordance with it. I am sure that many admission authorities will spot that irony as the weeks and months go by.

I want to comment briefly on intake, and whether it is relevant. I believe it is. I do not feel that I have an obsession with intake, nor do I believe that it is the overriding factor in the success or otherwise of individual schools; it is one of a number of factors. I reiterate the point—I am glad that the Opposition are taking it up as the debate moves on—that management, leadership, quality of teaching and flexibility of the curriculum are the key factors. However, intake is important, too, and the overwhelming body of evidence in this country and abroad is that education systems comprising schools with more balanced intakes deliver higher levels of achievement overall and are most likely to fulfil the potential of each child.

In the United Kingdom, and particularly in England, we do not fare well in terms of the objective of delivering the potential of each child. The gap between the highest and lowest achievers is too big. There is still a long tail of under-achievement. The chances of a child developing his or her potential is closely related to which school they attend. In other countries, the impact of the individual school on the child’s performance is far smaller. That is why intake is important. Also, it remains a complete contradiction in  the Opposition’s argument for them to deny that intake is relevant while forcefully arguing that schools should retain control over their own intake. We cannot have it both ways. Either intake is not relevant, and so it does not matter whether schools control their own intake, or intake is relevant, and so it is absolutely right that the Government should publish a stringent code, along with efficient compliance mechanisms.

On the Conservative party’s position on selective admissions procedures, both overt and covert, it always strikes me that the degree of fervour with which individuals support those selective procedures is absolutely related to the likelihood of their having been selected, or of their children having being selected. We have to consider the impact of selective procedures on all children, and not just speak from our own experience.

Finally, the hon. Member for Bognor Regis and Littlehampton said that the code and its new mandatory status are to do with the difficulties of managing the Labour party. I do not deny that there are difficulties in managing our party from time to time, but the issue is not about politics; it is about logic and reason. The Government listened to the rational arguments made about the importance of the mandatory status of the code and responded to them, and that is how a Government should proceed. I am delighted that they have taken that view, and I am very grateful for the Minister’s response to my amendments. I beg to ask leave to withdraw the amendment.