Clause 80 — The register

Orders of the Day – in the House of Commons at 5:45 pm on 17th November 2008.

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Lords amendment: No. 41.

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this we may discuss Lords amendments Nos. 42 to 166, 192 to 206, 212 and 215.

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

This group of Government amendments to chapters 1 and 2 of part 4 of the Bill put into effect the commitment made in another place that the Government would no longer seek to move responsibility for the registration, regulation and monitoring of independent educational institutions and non-maintained special schools from the Secretary of State to Ofsted. As Lord Goodlad would put it, it is a case of audi alteram partem, I think. This elegant three-point turn is a demonstration of the desire felt by my noble Friends and me to respond to reasoned argument during the passage of the Bill.

The Government have decided to implement the change to the Bill through a large number of amendments to part 4, rather than by deleting part 4 it in its entirety and relying on the regulatory regime for independent schools set out in chapter 10 of the Education Act 2002, and on the regime for non-maintained special schools set out in section 342 of the Education Act 1996.

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Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Will the Minister tell us how the reasoned argument changed between the Commons Committee stage and consideration in the Lords?

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

It changed in the eloquence with which it was put. The changes are being made because chapter 1 of part 4 of the Bill restates the entire regulatory regime for independent schools. The change also offers the opportunity to ensure that protections are in place for children in the growing independent part-time sector. As part of that, part 4 makes a number of drafting and policy improvements. To take one example, the Bill introduces new appeal rights for proprietors of independent educational institutions and non-maintained special schools against decisions by the regulator, such as any decision to refuse an application for initial registration from a new institution.

The amendments in this group fall into three broad categories. The vast majority of them affect the three-point manoeuvre in respect of the transfer of functions from the Secretary of State to the chief inspector. Many of them simply replace the words "Chief Inspector" with the words "Secretary of State". Others make consequential changes; amendments Nos. 59 and 60, for example, replace the power for the chief inspector to inspect an institution when an application for approval of a material change is made with a power for the Secretary of State, as the registration authority, to direct the chief inspector to carry out such an inspection.

The second set of changes brought about by the amendments do not relate to commitments made in another place. Amendments Nos. 131, 138, 162, 164 and 196 are minor and technical amendments to change the tribunal that will hear appeals against decisions made by the Secretary of State, and in certain cases, justices of the peace. Clause 110(5) states:

"'the Tribunal' means the tribunal established under section 9 of the Protection of Children Act 1999".

However, since the original drafting of the Bill, the Tribunals, Courts and Enforcement Act 2007, which we discussed earlier, has come into force. That Act consolidated the appeal and tribunal landscape, and regulations made under it will set out revised arrangements for tribunal hearings, so that appeals brought by proprietors of independent schools—and, through this Bill, proprietors of independent educational institutions and non-maintained special schools—will be heard by the health, education and social care chamber of the first-tier tribunal. I know that that answers one of the questions that the hon. Member for Bognor Regis and Littlehampton was bound to ask. The amendments will ensure that appeals are brought to the appropriate tribunal.

The final set of amendments in this group—Nos. 150 to 152—put in place transitional arrangements to enable a smooth transition between the existing regulatory regime, set out in chapter 10 of the Education Act 2002, and the new regime in the Bill. Amendment No. 150 ensures that any actions commenced under the current regime can continue, unaffected, when the new legislation comes into force. That will avoid duplication of effort and ensure that standards are not put at risk by new proceedings having to be started against institutions that are not meeting the statutory requirements. Amendment No. 151 ensures that the 2,400 or so existing independent schools do not have to be re-registered when the Bill becomes law, and it allows the Secretary of State to waive inspection fees so that institutions are not required to pay fees twice.

Lastly, amendment No. 152 ensures that directions prohibiting unsuitable people from participating in the management of independent educational institutions can be carried forward, as are any appeals, or reviews of directions, that are in progress.

I hope that hon. Members will agree that these amendments meet all the concerns about part 4 that were raised first in this place and then in the other place, and will therefore join the Government in agreeing to them.

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Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 6:00 pm, 17th November 2008

As the Minister said, the Lords amendments reverse the provisions in the Bill that transfer registration and regulation of independent schools from the Department for Children, Schools and Families to Ofsted. That is welcome. We argued against that transfer in Committee, and my noble Friend Lady Morris continued the battle in another place. Her powers of persuasion were obviously much stronger than my own and resulted in the amendments tabled on Report in the other place that we are now being asked to agree to.

The policy behind the provisions in part 4 that sought to make the transfer have been fraught with error and poor policy making right from the start, even during the consultation process. The regulatory impact statement said, erroneously:

"Independent schools will benefit from only dealing with Ofsted."

However, half of independent schools are inspected not by Ofsted but by the Independent Schools Inspectorate. The ISI inspects schools that teach about 80 per cent. of pupils educated in the independent sector, so those schools will not deal only with Ofsted. That is an extraordinary factual error of understanding that no doubt contributed to the original decision to move the registration and regulation of independent schools to Ofsted. The original consultation document was also materially wrong. It stated at paragraph 2.23 that the reason for the transfer

"has been prompted by the transfer of boarding school and children's home registration and regulation to Ofsted from CSCI "— the Commission for Social Care Inspection

"from April 2007."

That is wrong, too. Ofsted does not register or regulate boarding accommodation—that stays with the Secretary of State. What transferred at that point from CSCI to Ofsted was the inspection of boarding provision. Again, this is not a minor drafting error—it goes to the root of the Government's understanding of how these activities are carried out, and it undoubtedly led to the policy that the Minister is now seeking to reverse.

The ISI and the Independent Schools Council were strongly opposed to the transfer. They have very good relations with the Department's officials in the independent education and boarding team—they are able to pick up the phone to them when issues arise, and that has worked well for many years. They also feel strongly that the role of inspection should be separate from that of registration and regulation, particularly as there may be disputes over how an inspectorate interprets the regulations with which they are checking compliance. Given that there was no credible policy imperative driving the change, the only reason left was that of efficiency, or alleged efficiency.

During the Committee's evidence sessions, I asked officials about the extent of such purported savings. One senior official said:

"We are still discussing costs with the Department".

She went on to say:

"We are still working on the exact numbers. I am not quite sure exactly what numbers we will need to transfer to us, to do that work." ——[ Official Report, Education and Skills Public Bill Committee, 24 January 2008; c. 95, Q223-225.]

Another official from Ofsted said confidently that he thought that Ofsted could do the work with between seven and 12 people. The Minister went even further when he said:

"I anticipate significant savings. I cannot predict whether we will move from 18.2 members of staff to approximately 10, but savings will be made". ——[ Official Report, Education and Skills Public Bill Committee, 28 February 2008; c. 784.]

Contrast those statements with the words of Lord Adonis in another place six months later:

"having taken a long, hard look at the best estimates that we have of the cost savings from the proposed transfer of functions to Ofsted and balanced those against the potential disruption to the sector that would be caused by the transfer, I have concluded that the case for change is not compelling."—[ Hansard, House of Lords, 21 July 2008; Vol. 703, c. 1598.]

That was a very welcome change of heart by a much-missed Minister. I wish that Ministers in this House, and Ofsted officials, would take the same assiduous approach to calculating possible cost savings before announcing that the policy would save money. We need less bluster and more facts from the Government.

Having said all that, better the sinner that repenteth. This is a welcome U-turn that we have been calling for in both Houses. As is the way of this Government, they put through their change of mind in the other place instead of here. That is partly down to the powers of persuasion of my noble Friend Lady Morris and partly due to the Government's mistaken belief that a U-turn in the other place is less noticeable than one here.

These Lords amendments take out a large proportion of part 4 by replacing the words "chief inspector" with "Secretary of State", and they constitute a large proportion of the amendments that we are discussing. They do not remove all of part 4, however, which will dismay some people, particularly those who teach their children at home. Part 4 gives a definition of an independent educational institution because the Government wanted to ensure that a small number of independent schools that provided only part-time education were properly regulated. Through parliamentary questions and confirmation by the Minister during the debate in Committee, such provision turned out to be just four schools.

Education Otherwise, which represents tens of thousands of parents who educate their children at home—an increasing phenomenon as parents worry about standards of behaviour in too many of our schools—said that these provisions might inadvertently catch informal arrangements to educate home-educated children using shared teachers, who have a particular specialism, in someone's home. In Committee, the Minister confirmed that the four institutions that he intended to be caught by the clause were Tyndale academy, Kids Company, Headstart Early Learning Centre and The Children's Garden. It is rather alarming, in terms of competence of policy making and administration, that the Government now say that that figure is not four but 1,100. In a letter to my noble Friend Lady Morris on 7 November, the Minister, Lady Morgan, wrote:

"When the Education and Skills Bill was introduced, we were aware of only four part-time providers...as more evidence emerged of local authorities increasingly using private sector and voluntary providers...an estimated 1,100 providers...might need to register as independent educational institutions".

What is astonishing is the phrase, "as more evidence emerged". It appears that the Government responsible for education in this country were unaware until this autumn that local authorities around the country were using at least 1,100 private education providers for alternative pupil referral-type education. It would be helpful to our discussions if the Minister could explain that confusion.

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Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

I want to focus on amendments Nos. 150 and 152. Amendment No. 150 inserts a new clause entitled "Continuity of the law". I would like some reassurance from the Minister about what appears to be a rather catch-all transitional provision that could allow those making legislation to cover their tracks and say, "This transitional provision is sufficient for all of us retrospectively to agree that everything's all right."

Amendment No. 152 inserts a new clause entitled "Prohibition on participation in management". The Minister mentioned it in his earlier remarks about mischief regarding unsuitable persons and maintaining existing protections in that regard. As I read it, the regulations referred to in the new clause will be made under the terms of that clause. I hope that there will be no hiatus between the safeguards offered by the current protection against unsuitable persons and the introduction of the new clause, which would allow for such protections to be continued but would not in itself introduce them, instead relying on regulations to be made under that clause. I seek assurances from the Minister that the timing will give us continuity of protection.

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Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I would like briefly to welcome the 180-degree U-turn in Government policy reflected by the amendments, and to pay tribute to my colleagues in another place who were more convincing than Mr. Gibb and myself.

According to the Government's explanation of the amendments, they decided that the case for changing from the status quo was not compelling. As the hon. Member for Bognor Regis and Littlehampton mentioned, I would have thought that the evidence we took in the consultation sessions at the beginning of the Committee's proceedings was fairly clear in making the argument against those changes given that a number of outside bodies gave evidence to say that the changes were unnecessary.

As well as drawing attention to this satisfactory U-turn, can the Minister explain what changes he hopes to implement to improve the communication between his Department and the independent schools sector? We have heard from the hon. Member for Bognor Regis and Littlehampton that that communication has been extremely effective up until now, but it is clear that there are major weaknesses in such communication. Not only was part of the sector taken by surprise by the changes, but if they had been consulted on in a more serious manner, we might have avoided the protracted debates and time-consuming processes that we have gone through in recent months.

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

This brief debate was an opportunity for Mr. Gibb to make the points that I thought he would make about our small change of heart in this policy area. I am grateful for his warm comments on my noble Friend Lord Adonis. Naturally, as the Minister with responsibility for the Bill, I discuss with Ministers who have responsibility for other policy areas—such as independent schools—debates in the Commons, so the words of the hon. Gentleman and those of Mr. Laws were not in vain during those debates because I reported their comments to my noble Friend. I justified the policy at the time, and he made the decision in the Lords, having listened to further debate, that the case for change was not as compelling as we previously thought.

The hon. Member for Bognor Regis and Littlehampton asked about home schooling and part-time providers, who are mostly engaged in alternative provision. We respect the right of parents to educate their children at home if they so wish, and as I said a number of times in Committee, the family home is not an educational institution and will not fall under the definition of institutions regulated under the Bill. Children educated alone by a parent at all times, regardless of location, will be regarded as those receiving home education and there would be no need to register.

Given that all children are entitled to learn in a safe environment, the state has a responsibility to make sure that minimum standards are met if they are not supervised by their parents so that they learn in safe premises, where child welfare and protection standards are met and where their education meets minimum standards. Where home education takes place in a pooled setting, and the child's education is not supervised by the parent, it is right that such provision should be registered.

The hon. Gentleman asked about part-time providers, and his recollection is right. When we initially took the Bill through the Commons, we were talking about four part-time providers. The work we then did through a telephone survey—it is not desperately authoritative—over the summer reinforces the need for registration. We spoke to just under 50 local authorities following the "Back on Track" White Paper about alternative provision and found that there may be up to 1,100 providers that need to register. I stress to the hon. Gentleman and the House that the figure is up to 1,100 providers—I estimate the figure to be between 130 and 1,100. It was not the most authoritative survey, but that figure reinforces the need for some sort of regulation. It is clear that the likely size of this educational sector makes it more, not less, important that coherent statutory standards are applied to those providers. The 135,000 young people each year who are not educated in schools comprise some of the most vulnerable in society and it is right that the settings in which they are educated should be properly registered and regulated.

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Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Am I wrong to be astonished that the Minister's Department did not know that 150 local authorities were using up to 1,100 private sector part-time providers to provide alternative education in their areas?

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners) 6:15 pm, 17th November 2008

Local authorities have a large amount of delegated freedoms, contrary to the narrative we sometimes hear in this place. Where young people have dropped out of, or been excluded from, mainstream education, local authorities have been using whatever providers they deem fit to provide alternative provision for those young people. I was surprised that the number was as high as the survey might have revealed, but that has reinforced the need to register and to regulate.

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Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I agree with my right hon. Friend about the need for registration, but is the lack of state provision in special establishments the result of closures in the past, when we rushed too quickly for an all-inclusive approach to education for children who need special education in special establishments?

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

I am not sure that it is a result of a rush to closure or that we need to enter into the debate on inclusion for children with special educational needs. Such alternative provision is often required for those with behavioural problems; there would obviously be a high percentage of pupils with SEN, but the principal issue relates to those whose behavioural needs could not be dealt with in mainstream education, meaning that some other form of provision had to be commissioned.

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Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North

I am digressing somewhat from the debate, but I wanted to make a point that I have made before to my right hon. Friend. Would it not be sensible to look seriously at the idea of local authorities forming consortiums that could provide specialist establishments in the public sector for children with very special needs, given that almost all of us have come across such children?

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Kelvin Hopkins, Thank you for raising this question ,however there is an unwritten rule on special needs the parents DO NOT GET HELP. Instead THEY GET THEIR CHILDREN REMOVED by LA - then the next step is the children do not get an...

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

My hon. Friend follows such matters closely, and he will know that as a result of the White Paper we published this year, we have focused a lot more on these issues. We are interested in innovative approaches to improving provision, and we want to raise the overall quality of provision for those young people. It is precisely because of the measures we are taking to raise the participation age that we must not give up on any young person, even when they have made mistakes. We are ensuring that local authorities commission the right provision to get those people back on track.

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Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

Does not the debate reveal that a coach and horses has been driven through the Minister's policy? The White Paper, "Back on Track", to which he referred, was published in May 2008. At that point, I understand that he had no idea that local authorities were using 1,100 private sector alternative education providers, but he had already formed what he thought would be the policy to improve alternative provision in local authority areas. In his letter of 4 September, he said that his telephone survey was carried out between early June and early July, but he had already formulated his policy in May, before he acquired that crucial piece of information about alternative education in this country.

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

The White Paper was drawn up in the context of ensuring that we improved the quality of alternative provision. How that provision was registered came to light in the summer as we sought to implement the White Paper and as we prepared for the announcement of 12 pilots in October in order to develop new and innovative forms of alternative provision. I make no apology for wanting to drive forward whatever sort of vehicle the hon. Gentleman may propose to ensure that vulnerable young people are educated in registered provision that can be properly inspected, and to ensure that that education is of the appropriate quality.

My hon. Friend Rob Marris raised some issues about transitional provisions and the amendments that deal with them. The new clause that amendment No. 150 would insert are intended to provide for the seamless continuity of the law, a phrase that my hon. Friend used about actions begun but not completed under the existing regulatory regime. The purpose is to prevent unnecessary delays and complications in dealing with on-going cases from arising. Clause 151 contains a power to make specific transitional provisions, if necessary. A specific transitional provision would trump the general continuity provision in amendment No. 150.

Amendment No. 151 is intended to provide for the seamless continuity of the register of independent schools in England. The existing register is kept under section 158 of the Education Act 2002. Clause 80 provides for the new register of independent educational institutions, which will include the existing register and any part-time providers. As we have just discussed, they will be registered under clause 77.

My hon. Friend asked about an hiatus with respect to amendment No. 152. I can assure him that there will be no hiatus. As soon as the Bill comes into force, the amendment will allow us to ensure that that transfer of responsibility takes place. We will lay the regulations before the new legislative regime comes into force. Amendment No. 150(6) would grant the power to make the detailed relevant provision. I hope that I have answered my hon. Friend's questions.

I hope that my other comments have dealt with the queries of Mr. Laws. I wish to add that the relationship with the Independent Schools Council is important. It inspects many independent schools—

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

Indeed. The Independent Schools Council represents many independent schools. We have a good relationship with many independent schools and I was pleased to visit, for example, Epsom college, last week to mark its sponsorship of Lambeth academy. It joins the United Learning Trust as a sponsor of Lambeth academy and will help the academy to develop its sixth form. That is a positive step for independent schools working with state-maintained schools.

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Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Is the Minister confident that communication between the Department and the independent schools groups is strong enough to avoid problems in future?

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Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

We have held discussions with the Independent Schools Council and reached agreement on the three main concerns that it has raised with us. To avoid doubt, I will reiterate the commitments.

First, we have agreed that regulations under the new standard for leadership and management in clause 79 will be modelled on the Independent Schools Inspectorate's criteria for judging leadership and management in its current inspections framework.

Secondly, in abolishing the category of schools approved under section 347 of the Education Act 1996, we are clear that we do not want to introduce extra bureaucracy as a result of a deregulatory measure. We are therefore committed to publishing a central list of all independent schools that are registered as being specially organised to provide for children with special educational needs, as the Independent Schools Council has requested. In doing that, we look to the possibility of enhancing the information available to parents and local authorities that is contained on the list.

Thirdly, to discourage local authorities from additional red tape for schools, we will publish strengthened and clear guidance, on which we will consult. We will certainly consult bodies that represent independent schools. Indeed, throughout the implementation of the changes, the Department will continue to work closely with the sector and the schools affected by the repeal of section 347.

I hope that we have had sufficient discussion for the House to approve the amendments.

Lords amendment agreed to.

Lords amendments Nos. 42 to 166 agreed to [some with Special Entry] .

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