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Clause 192

Apprenticeships, Skills, Children and Learning Bill – in a Public Bill Committee at 11:15 pm on 26th March 2009.

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Power to require LEAs in England to obtain advisory services

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss amendment 1, in clause 192, page 111, line 10, after ‘are’, insert

‘judged by Ofsted to be’.

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

The clause is important. It gives power to the Secretary of State to require LEAs in England to obtain advisory services. This part of the Bill is significant because it is about the mechanisms through which the Government want to ensure school improvement. We had an interesting debate in Committee a few days ago about the Young People’s Learning Agency and the role of local authorities in securing school improvement. Different views were expressed about whether the Government’s approach was right.

I draw attention to an excellent paper produced by Policy Exchange within the past few weeks entitled “A Guide to School Choice Reforms”, which no doubt the hon. Member for Bognor Regis and Littlehampton will already have read twice, being the assiduous reader that he is. The document draws several lessons from the  experiences in the United States, Sweden and the United Kingdom and refers to the importance of accountability to drive school improvement. It states:

“Accountability is difficult to manage at a national level: The problem of entirely ignoring local government is that it is very difficult to authorise and oversee schools from central government.”

We of course believe that it is important that local authorities have some kind of oversight role of schools and a duty to ensure improvement of school standards within their area. We believe that it is important for Ofsted, working as part of what we think should be a much more powerful education standards authority, then to hold local authorities to account for school improvement and ensure that they actually do their job in a way that, frankly, many local authorities, particularly Labour local authorities in deprived areas, were simply not doing five or 10 years ago, and perhaps even today.

Getting the structures of accountability right is crucial. Ensuring that the decisions taken by Ofsted, local authorities and the Secretary of State are right and fair is extremely important. What we do not want to end up with, in giving these powers to the Secretary of State, is an irrational and unfair system of driving school improvement. Indeed, I would question whether we really ought to have the Secretary of State involved in such matters at all, or whether in a properly functioning system the accountability should not be through local authorities and then through an independent inspectorate.

Some of the problems that arise when central Government are given the power to direct both local authorities and schools are highlighted in the report by Policy Exchange, which shows the dangers of the Government using crude measures to determine how they intervene in schools and therefore implicitly in local authorities. The report highlights specific issues that are relevant to amendments 148 and 1. It deals with what it described as the slightly Orwellian national challenge that has been implemented by the Government over the past year and the 638 schools that were identified in it.

The report states that the definition of failure used by the Government is woefully simplistic, as it assumed, for example, that an inner-city school achieving 25 per cent. good GCSEs on the five A* to C benchmark might be performing worse than a suburban school scoring 35 per cent. That might be debatable on the basis of its intake. Indeed, perhaps more encouraging in terms of making rational decisions about school performance, we recently saw one of the first grammar schools being criticised by Ofsted in respect of its performance, even though its five A* to C figures were extremely good.

Policy Exchange goes on to state that it hopes the school report cards that the DCSF is considering introducing will bring a new level of nuance to school improvement policy that, for now, is based on a crude and arbitrary cut-off point. Some of its concerns reflect our worries about this part of the Bill, which gives powers to the Secretary of State to interfere in respect of local authorities.

The clause amends existing section 62A of the Education Act 2002.

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

I have been trying to resist the temptation to intervene. Would the hon. Gentleman accept that a school in a leafy suburb that has fewer than 30 per cent.  achieving five or more GCSEs including English and Maths is a school that warrants intervention from somebody?

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

I would certainly suggest that such a school warrants intervention of some kind, but we are here being invited to give that power of intervention on an extremely vague and unclear basis. I shall come on in a second to look in particular at clause 192 and how it seeks to define failing schools and who it gives power to.

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

If the hon. Gentleman accepts that some intervention is necessary for a school in a leafy suburb that has fewer than 30 per cent. achieving five or more GCSEs at grade A* to C, why then does he not accept that the same intervention should take place if the school is sited in an inner city?

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

The hon. Gentleman misses the point. I am not suggesting that action should not be taken to improve schools with very poor results. However, I do not support a crude approach that suggests that the only way to measure whether schools are doing a good job is based on a 30 per cent. threshold, aside from whether they could be schools that are improving very rapidly from, say, a 5 per cent. starting point, or schools that are achieving 50 per cent. five A* to C grades at GCSE when they should be achieving a figure of 80 or 90 per cent., based on their intake. I am not seeking in any way to undermine the drive for school improvement and I am trying to ensure that local authorities are properly held to account in their job as commissioners. Indeed, it would be a major deficiency in our approach if we were not to hold the commissioners to account, because clearly that has not worked in the past. I am merely questioning how the Government are doing that and whether there is any coherent—to use the Committee’s favourite word today—thinking behind the measure.

The existing power that the Secretary of State has is to require local authorities in England to obtain advisory services where the local authority has schools in either of the categories requiring special measures or significant improvement—in other words, Ofsted categories with some form of independent ratification of the extent of the problem—and where the LEA does not appear to be effective or likely to be effective in improving those schools or other schools in their area that may be placed in these categories.

Clause 192(2) inserts an additional trigger for the Secretary of State’s power to require the local authority to obtain advisory services. Proposed new subsection (1A)(a) says that a local education authority in England can have intervention from the Secretary of State where it maintains a disproportionate number of low-performing schools. The questions are how the assessment of low-performing schools is made and whether the assessment has any credibility. Those questions arise because of the definition of a low-performing school in proposed new subsection (1B). It states:

“In subsection (1A) ‘low-performing school’ means a school at which the standards of performance of pupils are unacceptably low.”

It will be obvious to most Committee members that that is pretty much a tautology and that it does not help in any way to determine whether the schools really are low-performing.

Somewhat predictably, to deal with that problem, we have new proposed new subsection (1C), which states:

“For the purposes of subsection (1B) the standards of performance of pupils at a school are low if they are low by reference to any one or more of the following—

(a) the standards that the pupils might in all the circumstances reasonably be expected to attain;

(b) where relevant, the standards previously attained by them;

(c) the standards attained by pupils at comparable schools.”

Our concern is that that is all still extremely vague and that we are giving powers to the Secretary of State to intervene in local authorities without there being necessarily a proper basis of proof that those are failing local authorities. If the Secretary of State is to intervene at all—we question whether he or she should be a fundamental part of the system of school improvement, rather than a distant backdrop—he or she must intervene on the basis of an objective assessment of whether schools in a local authority area are really failing.

There is clearly a danger that the Government could waste time commissioning or insisting that local authorities commission advisory services when they do not need to do so, or that the current Government or a future Government could decide to target local authorities that are not under their political control—for example, because they might be embarrassed by the consequences of targeting local authorities that are under their political control.

If we have proposed new subsection (1B) as a tautology and this degree of vagueness in proposed new subsection (1C), there must be serious concerns. Even proposed new subsection (1C)(c), which seems to have a more sensible benchmark embedded in it—seeing if

“the standards of performance of pupils at a school are low by reference to...the standards attained by pupils at comparable schools”— raises all sorts of questions, with which the Government are trying to grapple in the school report card that they are considering developing.

There are some difficult questions. For example, the Government might say that they could compare a number of different schools that have similar numbers of pupils on free school meals to determine whether the standards in one school were unacceptably low. However, the performance of many youngsters who are not entitled to free school meals can often be as poor as those entitled, particularly if those youngsters come from low-income families where the family income may be just above the level of benefits, where the parents may be on the minimum wage or where there may be low educational aspirations. There are also enormous differences in the performance of different ethnic groups. If we chose to compare groups of youngsters in particular schools with a similar free-school-meal composition, we could find that the reasonable expectations for the level of performance might be quite different—for example, comparing a school with a large number of Asian or Chinese pupils with pupils of a different ethnic background.

We question whether the Government are clear and convincing enough about how they are going to use the powers fairly. So, we have proposed a couple of amendments to the clause, the first to appear in the Bill being amendment 1, which would insert

“judged by Ofsted to be” in line 10 of page 111. The clear purpose of the amendment is to ensure that the means for judging whether schools are low performing is not some national challenge-style, crude sledgehammer approach, but is based on a proper appraisal and assessment of the school.

I am willing to acknowledge that the assumption that every school that is failing needs to be assessed and ratified by Ofsted is a challenge. In our discussion the other day I raised the circumstances in which Ofsted might not have a detailed oversight of every school on an ongoing basis, particularly under the new light-touch inspection regime. However, what we are talking about here is intervention against a local authority. It is surely reasonable—highly desirable—that Ofsted should be involved in that evaluation. I would like the Government to be much more rigorous in using Ofsted to hold local authorities to account, particularly as there seems to be such low confidence in Government in the ability of many local authorities to hold schools to account that we have had to establish a YPLA in order to have oversight of the academies as a group.

I would like Ofsted to play an important role in holding local authorities to account. I would like its reports on local authorities to be transparent, up front, given a large amount of publicity and, perhaps, filtered away from the other reports on children’s services, which are dealing with such sensitive issues in the aftermath of Baby P. I want to ensure that the reports on the job that local authorities are doing are based on a sensible and realistic appraisal by an impartial body, not simply on the basis of a political assessment.

Amendment 148 would reinforce that message by deleting “the Secretary of State” from page 110, line 38, thereby ensuring that the responsibility for determining whether a local authority has

“a disproportionate number of low-performing schools” is transferred to Ofsted.

We believe that those changes are sensible and would like the Government to reflect on them. They should certainly do so before developing the performance score card, which might give a more reliable basis for making the judgments that the Minister wants.

I will conclude with some points on clause stand part, because I assume, Mr. Chope, that you would like that to be dealt with in this debate rather than having a separate clause stand part debate. I wish to raise the oversight of academies with the Minister. Although the freedoms that academies have should be protected and granted to more schools, there must be a proper accountability framework for academies. A number of them are already failing. As the academy programme expands, there are bound to be more failures, because there are failures in any school type.

The Policy Exchange report highlights deficiencies in the academy programme. It points out that the DCSF can cancel existing contracts if the academy is put into special measures by Ofsted or if the sponsor is at risk of bankruptcy. If the academy has not infringed those requirements, the DCSF must give seven years’ notice if it wishes to cancel the contract, as must the sponsor. Given that the number of academies will expand, the Government should consider how they will be held to account under the provisions of the Bill that deal with bodies that hold accountability for individual schools.

In expanding on his party’s position the other day on the YPLA provisions, the hon. Member for Bognor Regis and Littlehampton said that in future, federations of academies and other schools are likely to be a necessary driving force in holding schools to account. I am not sure I agree with that, but it raises the question of how those federations should be held to account. When taking these powers to ensure that local authority commissioners do their job, the Government should reflect on how they will hold to account federations of academies or individual academies. They must consider whether their intervention powers are strong enough. We could end up with the Government taking increasingly strong intervention powers for local authorities and maintained schools, while leaving academies unprotected in relation to their performance accountability.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch 11:30 pm, 26th March 2009

The hon. Gentleman is right to anticipate that I do not intend to have a separate clause stand part debate.

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 hon. Gentleman has described the clause and the amendments. The clause will ensure that the Secretary of State can challenge and support local authorities in which the standards in a number of schools remain low, with no evidence from the authority of sustainable improvement. There must be robust evidence of low standards, such as data on attainment and pupil progression in relation to reasonably expected standards using standards previously attained by them or by pupils at comparable schools. Such local authorities will be given the expertise to support and challenge their schools. The advisory services will be external educational experts or a named school that will bolster the local authority’s ability to support its schools.

Under the amendments it would be the role of Ofsted, not the Secretary of State, to judge whether the performance standards of a school are unacceptably low and thus whether the local education authority maintains a disproportionate number of low-performing schools. It is important to remember that the Secretary of State, not Ofsted, is responsible for school standards and is accountable to Parliament on them. As a principle of public law, he has to act reasonably and rationally. He sets the targets and collects data on standards annually. He therefore maintains a legitimate view of standards. Given that accountability, the Secretary of State must have the freedom to take the ultimate decision about when he deems standards in schools to be too low and to direct a local education authority to obtain the services that I mentioned. However, we do not anticipate that he will do that in isolation. I hope that the hon. Gentleman accepts that that goes some way towards his argument.

We intend that the Secretary of State will consult Ofsted, when he deems it necessary, before exercising this power, and he will certainly want to look at the context within which the school operates. The amendments would fetter his ability to act swiftly and effectively and support local authorities to remedy local performance in their schools and take responsibility for ensuring that the local authority targets, which he has set and is accountable to Parliament for, are met.

Academies already have a proper accountability framework. Many of the powers to appoint additional governors are modelled on legislation dealing with schools  causing concern. The accountability is there through me and we have the measures that we need in the funding agreement.

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

I think that the Minister said that before using the intervention powers the Secretary of State would always consult Ofsted. It would be useful if he confirmed that. It would also be useful if he said what would happen if Ofsted responded to the Secretary of State, saying that it did not believe that the criteria set out in new subsection (1C)(a) to (c) were met in relation to that local authority. Would the Secretary of State pay any attention to that?

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 said that it is our intention that the Secretary of State will consult Ofsted where he deems it necessary. We do not intend to give Ofsted the power of veto. In the end, the Secretary of State is accountable and he will make the decisions. I hope that, on that basis, the hon. Gentleman will ask leave to withdraw the amendment.

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

We got so close, but did not quite get there. The nub of the issue is not accountability or who triggers the action. I can accept that, given that the Secretary of State is a democratically accountable national politician, he might need to have some role in insisting over the head of the local authority that advisory services should be brought in. The nub of the amendments is whether the judgment and evaluation should be an objective, serious and impartial one made by a credible body on the basis of a careful assessment of school performance, or whether it should be made by—if I may say so—a here today, gone tomorrow Secretary of State.

Even though the Minister indicated that the Secretary of State might consult Ofsted when he thought it necessary, I do not think that he therefore implied that he would always do so, because the wording suggested that that was effectively optional and it left me with exactly the same concerns that I expressed in my main comments, which are essentially that a Secretary of State can make up his or her own assessment of whether a local authority is doing a good job and can exercise the powers of intervention without a basis in fact. That concern has been triggered by the crude way in which national challenge has operated.

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

Does the hon. Gentleman advocate the post of Her Majesty’s chief inspector being a life appointment? If he does not, could it not also be argued that the chief inspector is a here today, gone tomorrow official?

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

It might be, were it not for the fact that, as we have seen in the debates on Ofqual and the Qualifications and Curriculum Development Agency, we would wish to ensure that there was a much more independent oversight and appointment process for individuals who are given such important roles. Sadly, the Government have rejected many of those proposals that would ensure that those important officials have a reporting, accountability and appointment line that is not simply down to the Secretary of State of the day. The hon. Gentleman raises an important issue, but there is a way round that.

I am disappointed in the Minister’s response, but I shall mull this issue over to consider whether we should bring back another amendment at a later date. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 192 ordered to stand part of the Bill.

Clause 193 ordered to stand part of the Bill.