Clause 3 - Power to repeal new provisions

School Transport Bill – in a Public Bill Committee at 2:30 pm on 11th November 2004.

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Photo of Mark Hoban Mark Hoban Shadow Minister (Education) 2:30 pm, 11th November 2004

I beg to move amendment No. 38, in

clause 3, page 4, line 22, leave out 'may' and insert 'shall'.

Photo of Derek Conway Derek Conway Conservative, Old Bexley and Sidcup

With this it will be convenient to discuss the following:

Amendment No. 39, in

clause 3, page 4, line 24, leave out

'such date as may be specified in the order'

and insert '1 August 2011.'.

Amendment No. 52, in

clause 3, page 4, line 27, at end insert—

'(2A) The appropriate national authority shall publish the measures that it will use to determine whether or not the scheme should cease to have effect at the conclusion of the pilots, including—

(a) the impact on traffic congestion,

(b) the proportion of children using different ways of travelling,

(c) the effect of charging on car usage,

(d) the impact on families on low incomes,

(e) the impact on children with special educational needs,

(f) the impact on after-school activities and extended schools, and

(g) the impact on school choice, including the education of children in accordance with the religious, philosophical or linguistic preferences of their parents.'.

Amendment No. 40, in

clause 3, page 4, line 29, leave out '2011' and insert '2009'.

Amendment No. 41, in

clause 3, page 4, line 31, leave out '2013' and insert '2011'.

Photo of Mark Hoban Mark Hoban Shadow Minister (Education)

I welcome you to this afternoon's proceedings—the final sitting on the Bill—Mr. Conway.

Clause 3 represents one of the most important procedural issues facing the Committee. As the explanatory notes indicate, it in effect gives the power for the school transport pilots to roll on beyond 2013. There will be no other opportunity through primary legislation to debate further changes to the schemes. The schemes beyond 1 August 2014 can be rolled out not only to the 20 or so pilot authorities, but to any local authority that chooses to apply to the Secretary of State to operate a school transport scheme.

In a sense, this is the one and only chance that we have through primary legislation to shape the future of school transport. I want to address that particular issue with the amendments that I have tabled—particularly amendments Nos. 38 and 39.

The Select Committee on Transport, in its scrutiny of the Bill, stated:

''While the provisions relating to the pilot schemes themselves are timid, the draft Bill as a whole is audacious. It gives the Secretary of State power to roll out pilot schemes without any further legislation.''

It expressed concern about that, and also stated:

''In effect, the Secretary of State for Education in England and the National Assembly in Wales would have power to determine the way in which school transport should be provided, without any

further report on the success of schemes, or sanction by Parliament. This is not acceptable. There are serious practical questions to be asked.''

The report of the Select Committee on Education and Skills on the Bill expressed the same concern: this matter will change the shape of the schemes.

Through amendment No. 38, pilot schemes will be brought to an end and will not roll on ad infinitum without any further consideration. If they are to be resuscitated, legislation needs to be brought forward to enable that to be done. Rather than give an unspecified date in the clause, we need to give a firm end date—1 August 2011.

The other issue, which is addressed in amendments Nos. 40 and 41, is the concern that the Select Committee on Education and Skills report expressed. It said:

''2011 seems a very long time to wait for a solution to be found to school transport that can be implemented nationwide. We therefore recommend that the Department looks into the possibility of running shorter pilot schemes or of evaluating currently existing initiatives to determine what works best.''

Amendments Nos. 40 and 41 will bring forward the period over which the pilots can be run—from effectively ending in 2013 to ending in 2011.

I am not sure that we need pilot schemes that last from their date of inception—which could be in 2005 or 2006—until 2013. That would give us six or seven years to pilot the schemes and find out their effects. We should be capable of evaluating those schemes in a much shorter period, so that we do not prolong a pilot that happens to have detrimental effects on any of a range of issues—such as school transport, school choice, congestion, charging families on low incomes—beyond the time needed for evaluation.

Allowing the schemes to last until 2013 makes the pilots too long; we should shorten the evaluation period so that it ends in 2011, and should enable some schemes to terminate as early as 2009. That will give the Department and scheme authorities ample time to put the schemes into practice, see what is happening and assess the evaluation.

In earlier debates, we referred to some of the criteria that could be used to assess the evaluation of schemes. Under an earlier amendment on scheme authorities, I suggested a series of measures, which are set out in amendment No. 52. The Government need to give local authorities guidance on the success criteria for the schemes.

Clearly, there will not be a straight yes or no answer on whether the schemes are effective; one cannot say that a scheme has worked just because it has reduced traffic congestion—if that is one's sole focus—when it has had a negative effect on other aspects of school provision in the area. That is why, in amendment No. 52, I set out a series of nine measures. That series is non-exhaustive, but it includes important issues on which we need to reflect when determining whether schemes have been successful, whether the pilot should continue and whether the scheme should be rolled out across the country, as is permissible under the Bill.

We have spoken a great deal about the impact on traffic congestion. One of the main purposes of the measures before us is to reduce such congestion, and clearly that is a factor that the Government should take into account when assessing pilot schemes and whether they should continue. There is also the issue of the proportion of children using different modes of travel. There was a great deal of debate on Second Reading about how many children cycled, walked, or used cars or buses to get to school. If we do not achieve a modal shift away from cars to other forms of transport, and if there is not a shift towards walking, the Bill will not have succeeded, because it provides an opportunity to tackle the issue of childhood obesity.

Our suggested subsection (2A)(c) refers to

''the effect of charging on car usage''.

There has already been debate in Committee on the tension between charging and its effect on car usage. We have cited the examples of rural constituencies; hon. Members have said that if people were charged too much they would use their cars. That is a valid concern. If charging drives up car usage, the Bill will have failed. The issue of the pilots' impact on low-income families was addressed this morning, so I shall not talk more about that, but clearly any decision to roll out the pilots to the rest of the country needs to reflect their impact on such families.

There are also complex issues in respect of children with special educational needs, which we debated on Tuesday. The Committee would agree, in one of its moments of consensus, that some of the most complex issues surrounding implementation have to do with the impact on children with special educational needs, who could attend a wide variety of institutions, including mainstream schools, special units attached to schools and special schools. Two thirds of the cost of school transport is incurred by children with special educational needs—who are, in a way, perhaps the most obvious and difficult target in terms of achieving cost reductions—so we need to consider the impact that any measures undertaken in pilots has had on meeting the needs of children with mobility issues, autism, sensory impairment and a range of needs that are currently covered.

The next issues to deal with are school activities and extended schools. Earlier this week I heard an example of the problems that parents face: a child who lived 20 minutes away from a school in Surrey was fine if he went there at the normal times—starting at 9 o'clock and leaving at 3.30—because the taxi ensured that he got there and back. However, if he stayed behind for after school activities, there was no LEA-provided transport available and his parents had to collect him, so his participation in after-school activities was rationed. Given the Government's focus on extended schools, if the take-up of after school activities or the use of extended schools is impaired because of the charging regime, or the nature of the transport arrangements, we should not continue pilot projects.

Both parties have agreed that parents should be able to exercise wider school choice. We need to see what impact the measure has had on patterns of choice being exercised and on existing choices about attendance at faith schools. I refer to the parents'

philosophical preferences, although those do not relate simply to choosing a school that reflects the parents' values in terms of adherence, or otherwise, to a religion. Some parents choose to educate their children at single-sex schools, for philosophical and perhaps religious reasons. We want to consider the impact of the travel schemes on such educational choices, as well as finding out about the impact on children whose parents wish them to be educated in a Welsh language school.

These are probing amendments to flesh out some of the Government's thinking behind clause 3, particularly because it gives the Secretary of State some significant powers—which the Transport Committee said were ''audacious''—to change the architecture of school transport, beyond the limited number of pilots envisaged by the Government, to affect all LEAs and all parts of the country.

Photo of John Pugh John Pugh Shadow Spokesperson (Education) 2:45 pm, 11th November 2004

I shall briefly say very much the same as the hon. Member for Fareham (Mr. Hoban). We have arrived at the sting in the tail. The Transport Committee, the Education and Skills Committee and the hon. Gentleman have all said things that are more or less identical. The Bill is a kind of amalgam piece of legislation; there is a proposal for pilots, and something that would enable a nationwide roll-out. Those two things joined together give cause for suspicion all round, because the Government's rhetoric about the Bill was predominantly about the pilots. Of course, as long as people are talking about pilots, concerns can always be allayed, because pilots are temporary and do not last long, then they are evaluated and people learn from them.

The normal procedure, which the Government might have followed, would have been to legislate for pilots, leave adequate time for evaluation and produce some wider enabling measure at a later date. The fact that that procedure is not being followed and is not the framework for the legislation will give grounds for suspicion that the Government are trying to sell us something that will ultimately turn out to be fairly unpalatable—and there will also be suspicion because they are cutting Parliament out of any further scrutiny of the schemes as they continue.

On Second Reading the Secretary of State said that he did not believe that there were such beasts as gullible councillors. He thought that if they were clamouring for the legislation, they would know exactly what they were clamouring for. The hon. Member for Fareham and I doubt that very much. In some sense this is a mixed Bill that asks for something modest, but—again, to use the word used by the Transport Committee—it achieves something audacious.

Photo of Stephen Twigg Stephen Twigg Parliamentary Under-Secretary (Department for Education and Skills)

I welcome you back to the Chair, Mr. Conway. First I shall address amendments Nos. 38 to 41, then amendment No. 52.

Clause 3(1), which amendment No. 38 would change, gives the Secretary of State the flexibility to

end school travel schemes in England if they are unsuccessful or if, in the light of experience, a different approach is required. It does not require him to extend schemes, and if he did not do so by 1 August 2013, the piloting provisions would lapse and the schemes would become permanent. Together, amendments Nos. 38 and 39 would ensure that all schemes in England ended by 1 August 2011. Amendments Nos. 40 and 41 would mean that pilots in Wales would end between 1 August 2009 and 1 August 2011.

I fully understand that the hon. Members for Fareham and for Southport (Dr. Pugh) want to ensure that school travel schemes are properly evaluated and that the pace of change takes account of the wide range of concerns expressed in the House and elsewhere. The prospectus explains that LEAs with approved schemes will be required to produce an annual report containing a range of information for the Department or the National Assembly. Pilot authorities will have to have reliable systems for monitoring pupils' modes of travel to school and the impact on vulnerable groups, and will have to describe the economics of schemes.

The prospectus will also commit the DFES to commissioning an independent evaluation of English schemes, which will provide evidence for the decision on whether to extend the school travel scheme approach after 2011. We understand that the Welsh Assembly has similar plans. Those safeguards will ensure that the piloting approach will continue only if it is successful, and that there will be an appropriate mechanism for examining what aspects of schemes work well and what aspects need to be changed. Furthermore, they will avoid the disruption that could be caused by the amendments if authorities with popular and successful schemes were suddenly unable to continue with them.

I cannot support the amendments because they require us to have completed and evaluated the pilot projects by 2011, and to have put successor arrangements in place. That would not give pilots sufficient time to operate for a reasonable period, for a rigorous evaluation to be completed or for parliamentary time to be found for any successor arrangements. LEAs tell us that pilot schemes need to offer stability over several years so that parents and pupils in the wider community understand what transport arrangements there are likely to be for the duration of the time that the children will attend school. The guarantee that 2011 will be the earliest end-date is designed to give LEAs and their transport providers security; they will know that piloting arrangements could continue until that date at least. Both LEAs and transport providers asked for that during consultation.

Under our proposals, LEAs can let contracts of several years, which may be more economical than those of one year only. For example, longer-term contracts may allow transport providers to invest in higher-quality vehicles or schemes to train their drivers in working with school pupils; those are among the important issues that the Committee has already addressed. At this point, I cannot forecast exactly when local education authorities will be in a position

to start schemes. It is possible that a handful of authorities may be able to start new schemes in September 2006, but I anticipate that 2007 will be earliest practical date for most authorities.

I reiterate points raised by Members on both sides during our earlier deliberations: a process of consultation, debate and agreement by national authorities has to be gone through for each of the schemes. In the light of that, 2007 is a realistic date for the schemes to start. Some schemes could involve phased changes over several years. In such cases, the full benefits would probably not emerge for some time. Once the schemes are fully operational, we need to build in a period—say, six months—for a thorough evaluation and further time for investigating alternatives, which might need fresh legislation. Indeed, in his remarks on amendment No. 52, which I will come to in a moment, the hon. Member for Fareham set out clearly some of the areas that would have to be evaluated during that period. It is important to allow sufficient time for that to be the thorough evaluation that all Committee members would want.

An end date of 2011 would give insufficient time for a proper evaluation of schemes, particularly if they do not start until 2007. The draft Bill provides a two-year window, which will allow the Secretary of State and the National Assembly for Wales to look at the results of piloting and make decisions as to whether the school travel scheme approach is successful. We think that that gives the right level of flexibility to take account of uncertainties as to when schemes will start operating and the way they are likely to be phased in. It is for that reason that we have provided an end date for repeal of 1 August 2013.

The amendments do not give sufficient time for school travel schemes to be up and running and to be evaluated and for alternatives, if they are needed, to be fully investigated. The time scale specified in the Bill strikes the right balance, and it will enable us to evaluate pilots thoroughly before making any decisions about future arrangements for school transport.

The hon. Members for Fareham and for Southport repeated the suggestion—I was going to say the charge—that we were taking audacious powers. It is worth reminding the Committee of a couple of points. Under the proposals, no local education authority will ever be put in a position where it has to adopt a different set of arrangements to that which they have under the existing legislation. That is because of the nature of this legislation; it is based on LEAs volunteering. No requirement is being placed on any LEA; a misunderstanding about that could have led to us being accused of being audacious.

In the light of this morning's discussion on amendment No. 61, tabled by the right hon. Member for North-West Hampshire (Sir George Young), we have agreed to look again at the issue of revocation in order to give greater flexibility and power to the LEAs. The challenge for those who seek, for perfectly understandable reasons, to tighten things up in

respect of parliamentary scrutiny, is that we could end up with a successful pilot having to come to an end because the powers do not exist for it to continue. That would be a realistic danger if these amendments were agreed to.

To add something to the discussion on the previous clause, if the piloting approach is successful and there is sufficient interest, we might be able quite quickly to have many more than 20 pilots. The current end dates of 2011 and 2013 would not hold up the further extension of schemes, provided that they crossed the various hurdles we have discussed, including getting both local support and then national approval and providing for very careful evaluation that this was a sensible course of action.

Amendment No. 52 proposes a non-exhaustive list of criteria which it is envisaged would be used by the Secretary of State and the Welsh Assembly to set performance measures. They would be used to measure the results of individual schemes, and to determine whether they should cease at the end of the pilot phase.

I agree that we need to set out clearly what we expect school travel schemes to achieve. The list contained in the amendment closely reflects the success criteria contained in paragraphs 8 to 10 of the draft prospectus. However, the amendment suggests that the relevant national authority should be obliged to adhere to detailed success criteria in primary legislation, rather than using the more flexible approach set out in the prospectus. That is not in keeping with the desire to make a thorough assessment of the outcomes of the schemes when we do not yet know the precise form that any of the schemes will take. They will run for several years, and we cannot precisely foresee whether unexpected events will affect progress and outcomes. Pre-determined rigid performance measures could themselves have consequences—albeit, perhaps, unintended ones.

There is a further difficulty with the amendment. It envisages that the Secretary of State or the Welsh Assembly will make decisions as to whether individual schemes will continue. However, clause 3 only provides powers for the Secretary of State to repeal the legislation, which would affect all the schemes together. There is no mechanism that would allow him to terminate individual schemes according to their individual performance against success criteria. I hope that the hon. Member for Fareham will think again about this amendment and the others, and will agree that scheme success criteria are best handled through the prospectus. I therefore ask him to withdraw amendment No. 38, and not to press his other amendments.

Photo of Mark Hoban Mark Hoban Shadow Minister (Education) 3:00 pm, 11th November 2004

The Minister has provided little reassurance on the clause. I come away from this debate feeling more nervous than I did when I started, in the sense that the clause gives the Secretary of State free rein to decide what the success criteria are as and when he chooses. Those criteria reflect concerns raised in Committee. We need statutory protection to ensure that there are defined criteria that a Secretary of State will use, and that he will not, in six or seven years'

time, decide on a whim that a wholly different group of criteria should be used.

The Bill and the prospectus are clear about what we are trying to achieve, change and protect. I am worried that we will shift the goalposts in the next six or seven years. Yes, there will be new issues—that is why my list is non-exhaustive—but the purpose of the legislation is, in many respects, reflected in the criteria listed in amendment No. 52.

As to the timing, I understand that schemes need stability, as the Minister said. They need to take place over a period so that we can assess their effectiveness. He also said that it was important that schemes reflected the length of time that pupils remained in education. As schemes develop and progress over the years, parents will be making educational choices for their children based on the scheme currently in place, so there will never be a good time to terminate a pilot; there will always be someone who will have chosen a school based on the pilot scheme in place.

We can have a shorter time period without losing the stability that the Minister wants for the pilots. To say that a pilot needs to be in place for as long as six years slightly undermines the Minister's argument, given that a child in a normal, 11-to-16 secondary school will be there for five years. We can have shorter schemes. We need to bear in mind the difficulty of practical implementation of the schemes, which we have discussed in the past four sittings. Although that difficulty might suggest that we should have longer for pilots, it also means that we should perhaps have shorter times so that we can evaluate the consequences of difficult, complex schemes on the choices that parents make.

I am not at all happy with the Minister's assurances, but perhaps we will tackle the issue on stand part. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Mark Hoban Mark Hoban Shadow Minister (Education)

The clause does not give sufficient protection to parents and the institutions to which they send their children. We need a far more robust clause to protect people, because this is the only opportunity that we will have to introduce, through primary legislation, the safeguards that we want for children who travel to school. If we simply say that, in future, the matter will be down to regulations, and that it will be up to the Secretary of State to roll out measures, we will be letting down people who, in a few years' time, as a consequence of one of the pilots, believe that there should be more statutory protection for, say, children with special educational needs.

There should be a more generous income test in terms of applying charges, and there should be statutory protection for children who live in rural areas beyond what is provided in the Bill. Simply allowing the clause to go through today, and allowing the Secretary of State to determine what is appropriate

in future, is not adequate if we are trying to protect the interests of our children.

Photo of Stephen Twigg Stephen Twigg Parliamentary Under-Secretary (Department for Education and Skills)

It is worth saying—and it is probably appropriate to do so now—that there were a number of courses of action that the Government could have taken in addressing the issue. One of them, and probably the easiest path, would have been to ignore some of the concerns expressed by local government on a cross-party basis, and to leave the legislation in place with all the anomalies described in Committee and on Second Reading. A second option would have been to have gone full steam ahead with a scheme that would apply in all parts of the country. The approach that we have taken, which is deregulatory, and enables authorities to volunteer to have pilot schemes and enables us to learn the lessons from those schemes, is the best way of taking matters forward.

Clause 3 gives appropriate powers of repeal, but does not give an absolute guarantee that something will be repealed regardless of whether its provisions turn out to be successful against a set of criteria. There is not a great deal of difference between the different parties represented in the Committee about what the success criteria will be.

The clause contains powers to repeal the school travel scheme provisions in the event that the approach is unsuccessful. The legislation would be removed from the statute book and school transport would return to the current arrangements. The clause is drafted in a way that allows the Secretary of State and the National Assembly for Wales to make separate arrangements. It specifies that the piloting provisions may not be terminated until 1 August 2011 at the earliest. That allows LEAs to put in place pilot school travel schemes that can last for several years.

I take the point made by the hon. Member for Fareham that we could be talking about quite a long period of time. A number of LEAs have said to us that they may wish to phase in new arrangements—for example, they might want to examine some of the issues that arise when pupils are changing schools from primary to secondary school. It may take several years for the full impact of a set of local changes to have effect and, therefore, that bit longer for us to be able to evaluate that. For the reasons that I set out in earlier remarks on the amendments, we have got the timing about right. The sorts of timings that have been suggested as alternatives would not give us sufficient opportunity to evaluate very fully. On that basis, I recommend that the clause stand part of the Bill.

Question put, That the clause stand part of the Bill.

The Committee divided: Ayes 8, Noes 5.

Question accordingly agreed to.

Clause 3 ordered to stand part of the Bill.