Clause 2 - Performance standards and safety warning notices

Education and Adoption Bill – in a Public Bill Committee at 2:00 pm on 7 July 2015.

Alert me about debates like this

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education) 2:00, 7 July 2015

I beg to move amendment 19, in clause 2, page 2, line 46, at end insert—

‘(2A) Any power exercised under this section by the Secretary of State must be done by Order.”

Clause 2 removes the mechanism for governing body appeal to Ofsted. This amendment requires the Secretary of State to exercise any power under the amended section 60A by Order contained in a statutory instrument under section 181(1) of the Education and Inspections Act 2006.

Photo of Alan Meale Alan Meale Labour, Mansfield

With this it will be convenient to discuss amendment 34, in clause 5, page 4, line 44, after “may” insert “by order”.

The amendment requires Parliamentary accountability and visibility in the direction making power of the Secretary of State.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I welcome everyone back for the Committee’s afternoon sitting. We come now to the third and final group of amendments to clause 2. Amendment 19 is an attempt to answer the problem of clause 2’s removing the mechanism for a governing body appeal to Ofsted. We are seeking more clarity about the decision to remove a governing body’s right of appeal to Ofsted following a warning notice. As the Bill removes the power of a governing body to appeal against a warning notice, the amendment would insert, as an alternative way of getting some measure of appeal, direct accountability for all decisions to intervene by the Secretary of State. It would require those interventions to be made via the mechanism of a statutory instrument.

It is clear from this and other actions by the Government that the Government lack confidence in Ofsted. Perhaps the fact that Ofsted has recently had to sack so many of its contracted inspectors—the very same inspectors on whom the Government have relied for judgments about which schools to intervene in—has led Ministers to strip Ofsted of the role of hearing appeals against these notices. I do not know. Perhaps the Minister will clarify why he does not think that Ofsted is a fit body to hear those appeals from governing bodies. However, just because the Government have lost faith in Ofsted’s ability to hear an appeal of this kind, that does not mean that they should completely abandon basic principles of natural justice. If Ofsted is not trusted by the Minister for Schools and the Secretary of State in this respect, surely something else should be put in its place as a safeguard against the arbitrary use of ministerial power.

The Schools Minister and I may disagree from time to time about the reasonableness of the actions that he takes and that the Secretary of State takes. I accept that we will sometimes see things differently when we are looking at ministerial actions, but as the Minister himself pointed out earlier in today’s proceedings, we are legislating for all future possibilities, including the most unlikely of possibilities for who might be sitting in his seat or the Secretary of State’s seat in the future. I remind him that there was a time when he was on the Opposition side and I was on the Government side. A week is supposed to be a long time in politics, so yes, that is ancient history, and I accept that we are likely to be in the same position for a few years to come, but on a serious note, we are legislating for all future Ministers, so we should be vigilant about legislating for anything that allows the arbitrary use of power by Ministers.

Amendment 19 means that, when issuing a notice, the Secretary of State would have to do so by order, rather than by direction. There would therefore be an opportunity for Members to pray against the statutory instrument—to use the technical term that we use in this place, not always understandable to the public—or, in effect, to put a question mark against what the Minister is doing to trigger at least a debate on the use of the power, against which the right of appeal is being removed from governing bodies.

Photo of Louise Haigh Louise Haigh Labour, Sheffield, Heeley

Does my hon. Friend agree that the issue is about not only who is Secretary of State, but an additional layer of accountability? As we heard time and again in evidence last week, that confuses the system and adds yet more challenges to a demoralised and over-pressurised workforce. Does he agree that the amendment would allow Parliament to scrutinise the impact on the workforce and on the education system as a whole of any order by the Secretary of State?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

With her usual acuity, my hon. Friend is absolutely right. That is an additional argument. We will be hearing from her later about her amendment, and I look forward to that immensely.

Amendment 19 proposes a minimum, light touch, democratic and parliamentary safeguard against a clause that introduces ministerial fiat into the Bill. Members might not be aware of this, but even the closure of a motorway slip road has to be done by statutory instrument through this place, yet apparently the Secretary of State, under the Bill, will be able to intervene in a school without any parliamentary accountability being necessary.

Photo of Nick Gibb Nick Gibb Minister of State (Education)

Does the hon. Gentleman think that, were the local authority to use the powers under discussion, those interventions should be subject to a negative resolution procedure in the House?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Preferably, another route of appeal would be available when the power was exercised by a local authority, namely an appeal to Ofsted. Given that the Minister is sweeping away any right to an appeal to Ofsted on behalf of governing bodies—presumably because he has lost all faith in Ofsted’s being able to deal with it—there must be some alternative. I am interested to know whether there is such an alternative, and whether that might be through a statutory instrument. That is  particularly apt when the Minister, who is after all accountable to Parliament, would be making such an order—or, indeed, such a direction—unless the amendment is accepted.

Photo of Bill Esterson Bill Esterson Labour, Sefton Central

It was interesting that the Minister asked about an appeal to the local authority. Does he think that that is a route to be explored, if he is concerned that using statutory instruments is excessive? Perhaps a local authority is the route to deal with such matters.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

The Minister was not suggesting that—I am saving him the trouble of explaining that to the Committee. He was testing whether, in the case of a notice laid by a local authority, there should also be a means of appeal through a statutory instrument, as envisaged in the amendment. I am simply saying that it is worrying that he is sweeping away any right of appeal and that such an approach has severe dangers—we will hear from several Conservative Members this afternoon, but I do not know if they are concerned about natural justice. The Schools Minister may be able to tell us, when he makes his remarks, about how he thinks the clause will fulfil the normal common-law requirements on natural justice—he mentioned common law in this morning’s sitting, so perhaps he will explain that point to the non-lawyers among us this afternoon.

All governing bodies are not necessarily up to scratch—everyone acknowledges that. The National Governors Association admits that governing bodies vary in quality across the country, and says, as we would—I am sure the Minister would—that

“governing bodies need to be honest and realistic about their own performance”.

However, there are many competent governing bodies across the country, which play a central part in school improvement and are capable of adequately challenging headteachers and senior leadership teams. There should be some channel for their concerns to be heard.

The revocation of the fundamental democratic right in the clause genuinely offends against natural justice. Disallowing any means of appeal constitutes unfettered power of the sort that the Minister has previously denied that he is seeking. I took the trouble of reminding myself of what the Minister has said on this issue in the past. In this case, it was during proceedings on the Education Act 2011, specifically when discussing the insertion of section 96A into the Education and Inspections Act 2006—again, this business of making legislation by amending previous Acts, which we were talking about earlier. At the 20th sitting of the Public Bill Committee on that legislation—it was a much longer Bill than this one; hon. Members will be relieved to hear that this Committee will not be sitting for that long—the very same Schools Minister who, Lazarus-like, is sitting here now after being taken out of the Government for a while, said:

“While we believe that the intervention power is necessary, we do not believe that the power of the Secretary of State should be unfettered. Schools will be able to make representations to Ofsted against the warning notice, whether or not it is given as a result of a direction. Ofsted will be the final judge of whether the warning notice should have been given. If the notice is confirmed, and the school fails to take the necessary action to remedy the concerns set out in the notice, the school will then become eligible for intervention.”––[Official Report, Education Public Bill Committee, 31 March 2011; c. 835.]

There we have it—that is what he said back in 2011.

It is therefore only fair that the Minister should give the Committee a full and properly justified explanation of why he now disagrees with himself. We all look forward to hearing from him at the end of the discussion on this group of amendments, and I may want to probe him a little further once we have done so, so I will leave my remarks there for now.

Photo of Emma Lewell-Buck Emma Lewell-Buck Labour, South Shields 2:15, 7 July 2015

It is a pleasure to serve under your chairmanship once again, Sir Alan. I will speak briefly in support of amendment 19.

During debates so far on the Bill we have heard a lot about accountability, which is why I am so surprised that, when it comes to the powers that the Bill gives the Secretary of State, there is so little by way of accountability. In our sitting just last Thursday we heard that the Secretary of State will not have to justify her reasons for intervening to regionalise adoption services; now, in clause 2, we see that she will not have to answer for her decision to intervene in a school, either.

I find it a strange trend, at a time when there is such a lively public debate about devolution and giving control of public services to communities, that when it comes to schools the Secretary of State seems to be accumulating ever more power. Clause 2 will mean that interventions can be signed off from Whitehall with no public scrutiny and no way for the decision to be effectively challenged. Taking away governors’ right of appeal makes the Executive completely unaccountable. Parents and governors need to be able to have confidence in the decisions that are being made about their school and they will not be reassured when those decisions are handed down from Whitehall while they have no ability to challenge them.

We all agree that turning underperforming schools around is important, but precisely for that reason, there needs to be proper accountability in the decision-making process. Parents will want to know that the decision has been made carefully and not on some whim of the Secretary of State’s. That is why amendment 19 will require a statutory instrument to be laid before the House before an intervention can be made. As my hon. Friend the Member for Cardiff West noted, it is not just Opposition Members who have opposed giving the Secretary of State unbridled power. I repeat that, back in 2011, this Schools Minister said,

“we do not believe that the power of the Secretary of State should be unfettered”.––[Official Report, Education Public Bill Committee, 31 March 2011; c. 835.]

Somewhere along the way it seems that he and the Government have changed their mind. If the Minister is not willing to accept amendment 19, will he please tell the Committee why he no longer believes that the Secretary of State needs to be accountable and why these decisions should be taken without proper scrutiny?

Photo of Louise Haigh Louise Haigh Labour, Sheffield, Heeley

It is a great pleasure, Sir Alan, to serve under your chairmanship on my first Public Bill Committee. I support amendment 19 and I shall further examine the impact on subsection (2)(h). First, I ask the Minister for a clarification. Paragraph 19 of the explanatory notes state:

“The governing body’s entitlement to make representations against the warning notice to the local authority, and the local authority’s obligation to consider those representations, is removed by clause 2(2)(h)”.

However, the actual effect of this subsection, which removes subsections (7) to (9) of section 16 of the Education and Inspections Act 2006, seems to be to remove the entitlement of the governing body to make representations against the warning notice to Ofsted, which may then uphold the warning notice or not. Perhaps this is just another symptom of the unnecessary haste with which the Bill was drafted and put before us, but it would be helpful if the Minister clarified his understanding of this provision and, if necessary, issued corrected explanatory notes.

I want to talk briefly about the real impact that the already highly stringent accountability regime is having on hard-working, dedicated teachers across the country and why I want some right of appeal to be maintained. On Friday night, I hosted a meeting with local teachers to hear about their experiences in the profession. I am sure the Minister will want to advise me on better ways to spend my Friday nights, but following the Minister’s response in the evidence session last week, when he told me there had never been a better time to be a teacher, I was interested to hear from those working on the front line whether they agreed. A wide range of staff attended, from lunchtime assistants, teaching assistants and newly-qualified teachers to teachers with 20-plus years of experience and heads of primary and secondary schools. We covered a range of issues that are currently affecting the profession, from the impact of academisation and the lack of CPD to the increasing use of teaching assistants and unqualified teachers in place of fully-qualified and experienced teachers, but what came up from every single person in the room was their fear of the current inspection regime. They fear that they will be judged as failing, inadequate or, as a consequence of the Bill, coasting. That is why this amendment, securing natural justice, is so important to those teachers.

One teacher with 18 years of experience in the profession broke down in tears in the middle of the meeting, describing working 50-plus hours a week, constant box ticking and evidence taking and excessive marking and paperwork—all things that she described as having nothing to do with why she originally chose to take up this vocation. Perhaps that would be worth it if it were all genuinely necessary to guarantee the best education for all our children, but there was a very strong feeling that the accountability regime cannot always be relied on to provide an accurate measure of quality.

My concern is that the clause will only add to the pressures outlined. For a governing body not to be able to make representations to Ofsted on the basis of a notice it believes to be based on inaccurate claims simply ratchets up the pressure.

I note that one group of teachers was not at the meeting on Friday; there was no one over the age of 50. Perhaps that is a consequence of the increasing number of teachers who retire early. Dealing with “inadequate” or “coasting” schools will ultimately rely on good teachers, such as the one who broke down in front of me who is now selling her house, so that she can leave the profession—something that she never thought she would have to do and least of all wanted to do.

The measures in the clause are perhaps minor compared with the Bill’s impact as a whole, but the direction of travel is important. We should remember that the effect  of legislation is not just on processes and procedures, but ultimately on the professionals who operate them and, of course, the pupils, and we all want them to succeed. I hope that the Minister will consider these points and those made by my hon. Friends, and I look forward to his response.

Photo of Nick Gibb Nick Gibb Minister of State (Education)

Welcome back, Sir Alan, after our short break. I will start by responding to the hon. Members for South Shields and for Sheffield, Heeley. First, the hon. Member for Sheffield, Heeley is absolutely right: the teachers whom she met on Friday are right about the workload that teachers endure at the moment. TALIS—the teaching and learning international survey—shows that teachers in this country are working significantly longer than the OECD average, perhaps by eight hours a week, yet the teaching hours that they work, according to that survey, are similar in this country compared with the OECD.

What is happening in those extra eight hours if it is not adding to the sum total of teaching in our schools? The answer is the sort of things that the hon. Lady is talking about: data collection, lesson preparation and marking. When we asked the teaching profession about its concerns about workload in response to TALIS and to what people were telling us, the issues that came top of the 44,000 responses were first, data collection and processing; secondly, the concept of deep marking; and thirdly, issues to do with lesson planning and so on.

We are taking measures to deal with these issues. We are setting up working groups, following that workload challenge, and looking at issues such as what is called dialogic marking to see whether that is the right approach. From my discussions with teachers, including the National Association of Head Teachers and other unions, I think that that is not the right approach to marking. We are absolutely looking at that to see how we can take away the pressure that is emanating from somewhere in the education world to insist that dialogic marking is used to give feedback on pupils’ work. We are also looking at data collection and resources that teachers use. We are absolutely committed to taking on the challenge of teachers’ workload, and we are determined to address it.

The hon. Lady referred to the explanatory notes, and again she is spot on. There is an error in the explanatory notes, which incorrectly refer to schools making representations to the local authority when, in fact, we are talking about representations made to Ofsted. She is right and that explanatory note will be corrected.

The hon. Member for South Shields referred to several issues where the Secretary of State will not have to answer. I have to disappoint the hon. Lady, but the Secretary of State does have to answer for everything that she does. She answers to us in the House at least once a month in Education questions, but also in other debates—Opposition day debates, Adjournment debates, Back-Bench debates and so on—so the hon. Lady is wrong to say that the Secretary of State will not have to answer, because she will.

Photo of Peter Kyle Peter Kyle Labour, Hove

My hon. Friend the Member for South Shields pointed out in her speech that teachers were feeling extra pressure from the additional inspection regime that will be added under the Bill. I notice that the Minister has not addressed that aspect in his remarks, and I wonder whether he will come back to it. As my  hon. Friend expressed powerfully, in addition to the local authority and Ofsted, an additional level of inspection will put extreme pressure on some teachers. Will the Minister address that point before he moves on?

Photo of Nick Gibb Nick Gibb Minister of State (Education)

I was struggling to understand the precise point about Ofsted; there is no additional inspection regime under Ofsted. The coasting issue is outwith anything that Ofsted does. In fact, we will debate this when we come to clause 1, which should be very soon I believe. We have set out clearly the metrics for the definition of a coasting school; it is based not on Ofsted judgments, but on performance measures, both attainment and progress, as set out in the regulations. We will debate that when we come to clause 1, but it is certainly not based on Ofsted judgments.

Amendment 19 relates to the power that we seek under clause 2, which was discussed earlier today and which will amend section 60 of the Education and Inspections Act 2006, to allow regional schools commissioners to give a performance standards and safety warning notice. Amendment 34 relates to the power that we seek under clause 5, which will amend schedule 6 of the Education and Inspections Act by adding proposed new paragraph 5A to provide that, where a local authority appoints an interim executive board, the Secretary of State, via the regional schools commissioners, could give directions on the IEB’s size and composition and on its members’ terms of appointment. This power will help to minimise the number of IEBs that do not work effectively—for example, they might be too big or not appropriately skilled—and help to ensure that they can make effective decisions on improving their schools.

Amendments 19 and 34 would achieve similar aims of requiring that any warning notice or direction about an IEB was made by an order contained in a statutory instrument under what will be section 181 of the Education and Inspections Act 2006. Under section 182(1) of that Act, such an order would be subject to the negative procedure. I understand hon. Members’ desire to ensure that there is due process behind any intervention, whether issuing a warning notice or giving directions about an IEB. Amendments 19 and 16, however, would introduce a different level of scrutiny of the Secretary of State’s power to issue warning notices from that which currently exists for local authority warning notices. That would involve unnecessary scrutiny of IEB direction and serve only to create more delays and bring more complexity into the system, which we are trying to reform to reduce delays and complexity. As hon. Members will know, statutory instruments are more properly used for changes in regulations or closing motorway slip roads than for tackling school underperformance.

When a regional schools commissioner issues a performance standards and safety warning notice directly to the governing body of a school under the new proposal in the Bill, they will do so only when they are convinced that the underperformance, the problems with governance or the safety issues warrant taking such action. Similarly, any direction in respect of a local authority IEB will be made only when the RSC judges that such action would be beneficial for the school in question. RSCs will be advised, of course, by their headteacher boards, which are there to support them in making effective decisions. Therefore, an appropriate level of challenge will be built into the system. Using a parliamentary procedure for secondary legislation would  be disproportionate. As RSCs are exercising the Secretary of State’s powers, the Secretary of State is, as I mentioned in response to the hon. Member for Sheffield, Heeley, already accountable to Parliament for the decisions that they make.

The hon. Member for Cardiff West made some references to Ofsted and the removal of the appeal to the chief inspector that is in this clause. Ofsted has had 40 representations against warning notices and has only upheld two of those appeals. The appeals process slows down action because the warning notice is paused while Ofsted considers the appeal, and the compliance period only begins again once the warning notice is confirmed.

Photo of Steve McCabe Steve McCabe Shadow Minister (Education) 2:30, 7 July 2015

I am trying to understand this general truth. An appeals process slows down action in any circumstances, but the purpose of the appeal is that the action might not be appropriate. That is why it is being challenged, so it is funny to use that as a defence.

Photo of Nick Gibb Nick Gibb Minister of State (Education)

Yes, but we are not talking about an appeal against a fine or a prison sentence; we are talking about an appeal against a warning notice to a school to require it to improve standards. That is a whole different ball game.

In any case, warning notices have to be reasonable. The Secretary of State will be accountable in Parliament for notices issued by regional schools commissioners. The Association of Directors of Children’s Services has long called for this step to be removed, as has Ofsted, which wants to see the process of warning notices streamlined and to ensure that schools take steps to improve as soon as possible. This is about swift action to ensure that school standards improve.

Photo of Peter Kyle Peter Kyle Labour, Hove

I do not want to try the Minister’s patience with my interruptions, but in recent weeks 40% of Ofsted inspectors have been released from their contract because they were not able to perform their duties to the standards expected. Does that not illustrate why appeals are so important? In the past, it might have been not the challenge that was incorrect but how that challenge was dealt with at the other end. We need to look at the appeals process, but now that we know that some of the inspectors making the judgments were, themselves, not up to the job, might the schools not have been right in the past?

Photo of Nick Gibb Nick Gibb Minister of State (Education)

We are talking about an appeal to Ofsted, so the hon. Gentleman’s query is rather strangely worded. What is happening at Ofsted is a reform process that Sir Michael Wilshaw, the chief inspector, has been preparing for some time. Inspectors are now directly employed by Ofsted, rather than through various subcontractors, which is a better way of managing inspections. It is a worthwhile reform, and I commend Sir Michael for what he has achieved in his determination to improve the quality and consistency of inspections. With those final words, I hope that Members now feel able to withdraw their amendments.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I listened with great interest to what the Schools Minister had to say. We had an interesting discussion about this group of amendments, with good contributions from my hon. Friends the Members for  South Shields and for Sheffield, Heeley, as well as interventions from other hon. Friends—with the exception of our Whip, who stays quieter than most of us for most of the time.

As I have said, we are concerned about the removal of any kind of appeal. I take seriously the Schools Minister’s point; we do not want any encumbrance in the system that would prevent swift action being taken in schools when necessary. We all take that seriously, but it is not a reason to sweep away any notion of natural justice. People who are often working extremely hard to run a school may feel that they have been the subject of an injustice in how the notice has been issued.

We should be extremely cautious about sweeping away any means of appeal. I hoped that the Minister might propose some alternative that would overcome his concerns about the potential misuse of an appeal to Ofsted in a process that he clearly does not think is appropriate, or that he might come up with some alternative means for people to have such decisions reviewed or to appeal against them. We do that all the time with constituents who come to us with concerns about a decision made by the Executive, the bureaucracy or a powerful institution. People feel that they are voiceless and do not have an opportunity to appeal against decisions. We help people all the time. Why should a governing body that feels it has not been treated fairly in the issuing of a warning notice by the Secretary of State not have a similar basic right to have the decision properly reviewed? Why can it not have an appeal mechanism—one that is not necessarily overly bureaucratic or lengthy? I cannot see any justification for allowing no means of appeal whatever.

The Schools Minister said that regional schools commissioners would issue a warning notice only where they thought it was warranted. If a public official or body is going to issue a warning notice that effectively tells an organisation that it is not running a school properly, the very least we expect is that the notice is warranted. If we are all supposed to be massively grateful that regional schools commissioners will not issue notices where they feel that they are unwarranted, I do not regard that as a crumb from the Minister.

James Berry (Kingston and Surbiton) (Con) rose—

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I see a breach in the Government Back Benchers’ Trappist vow of silence.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Not until I have teased the hon. Gentleman a bit—[ Interruption. ] He can sit down while I am doing it. In fairness to him, he has previously contributed to our proceedings.

Photo of James Berry James Berry Conservative, Kingston and Surbiton

The hon. Gentleman is a former Minister, as he has reminded us, and he well knows that all Ministers have to act rationally. That is a basic common law requirement of any Minister, so his point does not take the argument any further, does it?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

That is why we need some form of appeal, to determine whether Ministers are acting reasonably and rationally, which is exactly what I am arguing. Rather than our having to go to judicial review  and line the pockets of the hon. Gentleman’s lawyer friends, we could make an amendment so that Members of Parliament could consider the matter for themselves. We could have free use of his expertise. I remind him that praying against a statutory instrument is not a common occurrence—although it happens from time to time. It is an outlet or a safety valve where there is real concern that a Minister has exercised a power in this way. I am glad that he has taken the Schools Minister’s advice to get out more by joining in with our proceedings this afternoon. Some of his hon. Friends should follow that advice during the rest of our proceedings. I look forward to hearing from them. I am not convinced—[ Interruption. ] I make an exception for everyone who has done so, because I can hear some grumbling from the hon. Member for Portsmouth South. She has made a thorough and interesting contribution to our proceedings, which I welcome.

Clause 2 means that there is no safety valve. The Schools Minister said that an RSC would only issue a warning notice when it was warranted. They will be advised by their headteacher board, which will consist only of academy heads. I hope that the Minister will reconsider that. He said that there had been 40 such appeals to Ofsted and that two of those appeals were successful. We can read that in a number of ways. I have a feeling that, if all 40 appeals had been successful, the Minister would have told the Committee, “That’s another reason to get rid of the appeals, which are wasting everybody’s time by overturning these decisions.” If two out of 40 are wrong, is it not right that those two decisions should be overturned on appeal? If a wrong decision is taken, is it not right that it should be reconsidered? I think it is right. I do not propose that we should be overly bureaucratic. I would like to know more from the Minister about the alternatives. I feel that he has made his mind up on that.

Interestingly, he said that Ofsted’s reforms—bringing all its inspectors in-house—would improve quality. Perhaps the Government could learn that lesson in other areas from time to time. Contracting out is not always the answer to providing a quality public service. I will leave that thought hanging. On that basis, it is vital to lay down a marker about the importance of the principles of natural justice. I invite the Minister to give us a few more thoughts before we decide how we will dispose of the amendment.

Photo of Nick Gibb Nick Gibb Minister of State (Education)

I will be brief. I see your expression and sense that you want us to make some progress, Sir Alan. The powers that the Bill gives to the Secretary of State are identical to the power that exists for local authorities. The hon. Gentleman and other Opposition Members have not suggested in their remarks that the process of local authorities issuing a warning notice should be subject to a statutory instrument. Neither has he suggested that a byelaw is passed by the local authority before a warning notice is issued. He is asking for a process that does not apply to local authorities.

The hon. Gentleman quoted our exchanges from the Committee that considered the Education Bill that became the Education Act 2011. He cited my quotes about the insertion of a new section 69A into the 2006 Act. I refer him to clause 2(6) of this Bill, which says, “Omit section 69A”. We are repealing the very section that he cited as evidence of wanting to build in safeguards for new powers. We are now repealing the very powers that we  sought safeguards over in 2011. Therefore, he should be an effusive supporter of clause 2, especially of clause 2(6). With those few remarks, I urge him to withdraw the amendment.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I am grateful for that further clarification, if that is what we should call it. I freely accept that, as is often true on such occasions, all Opposition amendments may not cover every eventuality. We are on a journey of passing legislation, and there is a long way to go before it comes into law. That does not mean that we cannot add to the Bill on Report or when it is considered in another place.

We may well need to revisit the correct form of an appeal in relation to local authorities issuing warning notices. I am pointing out that Ministers are taking the power to issue a warning notice and abolishing any means of appeal against that, which seems a rather illiberal step for the Government to take. I ask my hon. Friends to join me in testing the opinion of the Committee on the amendments.

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 11.

Division number 2 Decision Time — Clause 2 - Performance standards and safety warning notices

Aye: 6 MPs

No: 11 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

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

Photo of Nick Gibb Nick Gibb Minister of State (Education) 2:45, 7 July 2015

I sense from the hon. Member for Cardiff West that there is a desire for the debate to be short, and I will try to keep it so. This clause would be fine. The warning notice process is that through which an underperforming school or one with poor leadership or governance, or one where there is a threat to the safety of pupils or staff, is required to make improvements or else become eligible for intervention. The Government recognise that this process can be unwieldy and uncertain. It is dependent on the local authority and potentially on Ofsted, and it imposes on the school an unrealistically short time scale for action. How can a school demonstrate that it has taken meaningful, long-term improvement action in just 15 days? Under this clause the Secretary of State, through the regional schools commissioners, will be able to issue a performance standard and safety warning notice directly to the governing body of an underperforming school without waiting for the local authority to act and without having to direct it to issue a warning notice where it has failed to act. The warning notice process is weak, complex and flawed, and it detracts from the real issue of the school’s underperformance.

There are 28 local authorities which have never issued a warning notice to any of their schools or to an interim executive board. Where action is in fact needed—whether in these authorities or not—it will now be possible for regional schools commissioners to move quickly and directly if a local authority has failed to do so. At this point, the local authority’s power to issue a warning notice to that school will be suspended, to avoid the school being confused or distracted by conflicting notices. The regional schools commissioners would be able to set a realistic timescale for the governors to act. They may still set 15 days, as the law currently stipulates, but they will be free to set a different timescale where appropriate, for example, to allow time for improvements to manifest themselves in exam results. There will be no provisions for a school’s governing body to appeal to Ofsted.

The clause would also remove the redundant power for the Secretary of State to direct the local authority to consider and then to issue a warning notice where it has failed to do so. We would of course still retain the power for local authorities themselves to issue warning notices, which can be effective in encouraging schools to raise standards and deal with poor governance or safety. We would allow them to be flexible in setting timescales for action. We consider that giving an additional power to regional schools commissioners to issue warning notices themselves will be of benefit and remove some delays and complexity in securing vital improvements. These measures go a long way towards ensuring that the warning notice process for underperforming schools is efficient and fit for purpose, and achieves the aim of ensuring that schools make the necessary improvements for the benefit of their pupils or become eligible for intervention. The process would allow schools—for example—to become sponsored academies. I therefore move that the clause stand part of the Bill.

Photo of Steve McCabe Steve McCabe Shadow Minister (Education)

I will be very brief. It seems to me that one of the central parts of the argument about this clause is whether the Minister has succeeded in persuading the Committee that he really has evidence to justify the powers that he seeks to take. Let me preface my remarks by pointing out that I like the Minister. He and I came into the House at the same time. In fact, I can remember tipping him in a poll of new Tories to be watched. Let me be clear on what I meant by that—new Tories who might succeed in climbing up the ministerial ladder, not slippery characters we needed to keep an eye on.

I should take advantage of this opportunity to clarify something raised earlier. I asked the Minister if he could cite some examples of local authorities being obstructive and say why he needed new powers. The Minister cited the example of local authorities seeking judicial review and went on to comment specifically on Coventry City Council and Henley Green primary school. I am sure the Minister did not want to mislead the Committee on this matter, but it is worth pointing out that at that time, Henley Green primary school was not in special measures. It was not a failing school. In fact, it was a school that had just received a “satisfactory” Ofsted report and some excellent comments in particular categories. What had happened was that its SATs results were way below the Government minimum. As a consequence, the Government decided that it should be part of a forced academisation programme. Before that,  there had been no examples of the Government forcing a school to become an academy unless it was in special measures or had failed Ofsted before.

Coventry council objected because it said that the Secretary of State did not have the power in law to force academisation in these circumstances. It pointed out that it had already met voluntarily with the head of the school and had agreed an action programme in which Frederick Bird school would buddy the school to improve the situation. It was extremely successful. Within a few months, the SATs results had moved beyond the minimum standards, and in English and Maths had risen by more than 20%. So successful was the programme that the Government decided not to challenge Coventry’s decision, acknowledged that they were wrong and backed down. So it would not be right for the Minister to pray in aid this example of a council being obstructive to defend his position. This was an example of a council taking a very sensible course of action that led to the right outcome. It was a council quite legitimately seeking to test whether the Secretary of State was exceeding his lawful duties. I do not think it was the Minister’s intention to mislead us, but as this is such a central part of the argument about this clause, it is only fair that the Committee should have a much fuller picture.

Photo of John Pugh John Pugh Liberal Democrat, Southport

I was going to say that it is always a pleasure to serve under your chairmanship, Sir Alan, but we were both on the Crossrail Bill and I have to say that it was not a pleasure all the time.

I have something to add about the appeal mechanism. Although I think that amendment 19 is a little too heavy-handed to address the issue, I want to appeal to all Members to consider carefully the concept of appeal. With regard to governing bodies, in certain cases an appeal for them would be worthless because they can be part of the problem. I am sure that members of the Committee can think of poor governing bodies in their own areas that have very little to say in defence of poor results and performance. However, there is another side of the story and I would like to give an example from my neck of the woods.

I have in my constituency a single-form-entry primary school that fell below the standard for entirely comprehensible reasons. There were quite a lot of staff changes, which make a big difference in a single-form primary school, and the school also had intake changes produced by an increase in migrant workers. The governing body rapidly found itself trapped in a room with somebody who described themselves as a broker on behalf of the Government and said that the school must join an academy chain as soon as possible—with which, incidentally, the broker had some connection. I never knew there were such people called brokers, but there are indeed; I am simply recording what they do. I have heard many descriptions of what then went on. There was an extraordinarily abrasive and unpleasant conversation, in which the broker said that either the school must join the academy chain, or the head and the governing body—the full set—would be replaced.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

The hon. Gentleman makes an interesting point. Is he aware that some of those brokers, as revealed in parliamentary answers, were being paid up to £1,000 a day by the Department for Education to carry out the work that he is describing?

Photo of John Pugh John Pugh Liberal Democrat, Southport

I have not finished describing it. A number of witnesses—people I have learned to trust—described the conversation as brutal and tantamount to bullying, and we are all against school bullying. Neither the head nor the governing body in that case was weak. They were saved at the last hurdle, because Ofsted produced a more favourable picture by bringing in objective data. The school is now thriving, and is part of the local education authority family. Had the broker got their way, it would have joined a chain, in which the nearest other school was 20 to 30 miles away. That example illustrates what can happen if some of the hurdles to what is called improvement are clipped away. Not only might there be a brutal, ineffectual intervention, but we might be endorsing a form of bullying, which we would all regret.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I am sure we all want to confirm that we like the Minister. One of the reasons why I like him is because he welcomes the fact that when others disagree with him, they do so vigorously. He enjoys the cut and thrust of debate. We should not be misinterpreted as not liking him on a personal level.

My hon. Friend the Member for Birmingham, Selly Oak and the hon. Member for Southport have given practical illustrations of why it is important that there is a safeguard or appeal mechanism in these sorts of processes. This may have settled down a bit now, but during the early years of the coalition Government—I should point out that there were Liberal Democrat Ministers in the Department for Education—some of the activities being carried out by those mysterious academy brokers were extremely dubious. They turned up at schools and metaphorically took the headteacher for a walk in the woods with a rubber truncheon, with the express intention that, by the time they came back from that treatment, they would roll over to anything that was demanded of them—in particular, that they would join an academy chain, whether or not that was the right solution for the school. For doing that work, they were paid huge sums of public money—up to £1,000 a day—by the Government. It is right that a light should be continually shone on those sorts of activities.

In our view, clause 2 represents an unnecessary further step towards centralising control over the school system in the hands of Ministers. It does so in two ways. First, it gives the Secretary of State the power to issue a warning herself. That might seem a small step, because the difference between the Secretary of State telling a local authority to do something, which is what the 2006 and 2011 Acts set out, and doing it herself might seem modest, but it is significant. Previously, the Secretary of State had to channel warning notices through local authorities, thereby ensuring that they are engaged in the process and that schools do not receive mixed messages. The clause does not even contain any requirement for the Secretary of State to consult a local authority before issuing a warning. There is no requirement on her to inform herself properly about what has been going on, merely a right to insert herself into the process whenever she feels like it.

The second power grab is at the expense of schools. All their rights previously written into legislation to object or appeal have been removed. If the Bill passes unamended, we will now have a system in which the  Minister’s diktat must be obeyed at all times without right of appeal. Surely it should be a presumption that people affected by a ministerial decision have the right to object and to appeal. Writing out such fundamental features of natural justice, as the Bill does, should surely require evidence of a serious and unusual emergency. We need to know what is so bad about the current arrangements; we need powerful evidence that they are bad enough to justify this extraordinary increase in ministerial power.

What situations have arisen that can be addressed only by this approach because they could not be addressed by powers in existing legislation? It is not sufficient to say that not enough warning notices are being issued, or that some local authorities are not issuing them; after all, they are supposed to be a last resort and not handed out willy-nilly. The most valuable and effective school improvement work happens by agreement and co-operation. It does not need to involve legal processes. The test of a process is whether schools in difficulties improve under it, and for the most part they are improving without the need for formal action. I think that we will return to this issue when we come to clause 7, perhaps discussing further by what means, other than those envisaged in the Bill, schools can be improved.

The Minister has told us, as he has in relation to other aspects of the Bill, that he will not tolerate people trying to obstruct Government decisions, because the interests of pupils must come first. Of course they must—we are all happy to agree on that principle—but the clause assumes that every Government decision, not just by current Ministers but by any Ministers who might occupy their positions in future, is always correct. That is a very big assumption not just for this Government but for any future Government to make.

There is an important balance to strike in such matters. In a democratic society, people have the right to disagree with and appeal against Government actions. Unless there is a real emergency, Governments should tolerate that within reason, listen to those objections and consider those appeals. If the right to object or appeal is to be withdrawn, we believe that it is important for the Bill to provide adequate safeguards to ensure that schools are treated fairly. That is why we tabled amendments earlier to restore minimum timescales for compliance, requiring warnings to be reasonable in their expectations and requiring follow-up action to be taken in a more public and accountable way.

The reality, of course, is that Ministers think that taking such powers will enable them to speed up the process of academisation, whether or not that is the right route to school improvement. The Minister seems to be committed to the proposition that that is the only route to improving a school. We know that at least as many schools have improved while retaining maintained status as have improved by being a sponsored academy. We certainly have not heard from the Minister about those schools that became failing schools only after they converted to academy status.

Someone with a suspicious mind might suggest that the clause is designed to enable Ministers to interfere with local authorities’ school improvement work because what local authorities do sometimes does not fit into Ministers’ ideological position. It is not a good idea for Education Ministers to be one-club golfers and to have no patience with anyone who thinks it can be useful to  use some of the other clubs that are available, according to the circumstances. We will not divide the Committee on the clause, but we have already registered our deep concerns about its illiberality and we may return to it later, either on Report or in another place.

Photo of Bill Esterson Bill Esterson Labour, Sefton Central 3:00, 7 July 2015

We heard evidence last week that the only way to improve schools is by academisation. However, we heard that from the chief executive of a chain of academies; we did not hear it from anybody else. It is not surprising that the chief executive of an academy chain would say that, or that other people take the view that there are other routes to improve schools.

As my hon. Friend just said, the clause is about speeding up the process of academisation by removing some of the barriers; by removing the opportunity for people to appeal or slow down the process when the Government decide that it is appropriate for a school to become an academy. As several hon. Members have already said, we should look at the evidence. I served on the Education Committee in the last Parliament and we did just that. We produced a report on academies and free schools. We took evidence and travelled around the country; we got out of this place, as the Minister said that we should. We spoke to schools and took written and oral evidence right across the schools estate. We took a lot of advice; it was a very thorough inquiry. What did we conclude? We concluded:

“Current evidence does not allow us to draw conclusions on whether academies in themselves are a positive force for change.”

What did we mean by that? We meant that it is too early to say that academisation in itself is the way to improve schools. We left open the possibility that there are other ways forward, and it is important that that point is taken on board.

It is crucial that the evidence is considered when creating legislation. From the evidence taken and in the stand part debate so far, we have heard that there has been limited use of the power of issuing a warning notice by local authorities. We have heard scant evidence that the local authorities have been wrong to use that power only sparingly. The Minister spoke about what happened in Coventry, which he thought was an example of a local authority dragging its feet. However, that turned out not to be the case; it was anything but, given that there had been a better way of improving the school and resolving the issues that had led to concern in the first place. This one example did not stack up; it did not provide the evidence that the Minister hoped it would.

Indeed, there are many other forms of school improvement. When the Education Committee looked at the evidence over many years, it found that activities such as the London Challenge had produced sustained, measurable and long-term improvement in schools. When that was rolled out around the country, there was the start of a big process of sustainable school improvement. The Committee did not find that, so far, that is true when it comes to academies as a whole.

The other thing I was hoping to hear about in this part of the discussion was what it is about warning notices that really makes a difference. I intervened briefly on my hon. Friend the Member for Cardiff West on that point earlier. I hoped that the Minister would pick up the point, so perhaps he can do so when he responds. Where is the evidence of success in the use of warning  notices—not just the individual case studies, but where are the data backing up the success of warning notices that justify a whole clause? They may well exist. I am not against the use of warning notices but, given the importance attached to them and the fact that they are so crucial that they take up a whole clause, I would expect the Minister to justify their use per se and why he has found it necessary to amend it. Perhaps he could deal with that point.

We also heard hon. Members ask whether the change to speed up the direct intervention by the Secretary of State by using regional schools commissioners is justified. That would increase the tendency to centralise decision making and involvement in local schools. Listening to the Government over five years—and I do not think it was just the Liberal Democrat influence on the Conservatives—I thought the Government were committed to the concept of localism. The Government went on and on about localism and its importance. Yet with academisation, we have had a centralising tendency, taking everything to the desk of the Secretary of State, which is not alleviated by having regional schools commissioners.

Measures such as those in clause 2 would reduce localism further because they would take away the opportunity for consultation and the right to appeal. Where are the checks and balances? Where is the local knowledge being fed in to decisions about whether a warning notice is required? Where is the opportunity for proper, informed debate and scrutiny around such important decisions for the future of children’s education in a school subject to a warning notice?

Those are the questions raised by the way the clause is drafted; and those are the questions that my hon. Friends were trying to tease out with their amendments. I am afraid they are questions that remain unanswered so far. I live in hope for when the Minister comes to respond, as everybody else has said. He is a decent and honourable man, whom we all like. We like him dearly. I am sure that, even without all these compliments, he would want to answer the questions being raised. Unless he does, the question remains about the real purpose of the proposed changes in clause 2 and elsewhere in the Bill.

I challenged the Minister on Second Reading and make the same point now. If there is more to this proposal than meets the eye, the Minister has the opportunity now to say whether his real purpose in making changes such as the increase in the use of warning notices is more than an attempt to unblock something that he claims exists but has not really been a problem—the delays caused by local authorities in the use of warning notices. That has not really been the problem that he is perhaps trying to say it is. Or is it something else? Is it something much bigger?

Is the real agenda that this is a means by which the Government are trying to get to the point where every school in the country becomes an academy, but they do not want to say so because they are worried that that would cause real concern. Is he really trying to get that through? Is that what he is trying to do? If that is the case, he should say so. In addition to answering my questions, might the Minister also take the opportunity  to say whether his true aim is to turn every school in the country into an academy whether it wants to be one or not?

Photo of Nick Gibb Nick Gibb Minister of State (Education) 3:15, 7 July 2015

I am overwhelmed by the kind comments from Opposition Members. I must apologise to the hon. Member for Birmingham, Selly Oak that the tip proved so abysmally wrong. I just hope that he did not put any money on it and I apologise profusely for leading him down that garden path.

When it comes to the Bill, however, I am not leading anyone down the garden path. There is no hidden agenda regarding warning notices. They are an extremely powerful tool. Once we have a less rigid compliance period, local authorities and regional schools commissioners will be able to require action and set the ambitious levels of improvement that they expect to see. If the school improves, the warning notice has delivered its result and has helped the school to take action. If a warning notice fails, there are other powers to require the school to enter into arrangements—we will come to the relevant clauses shortly—such as partnering with a more successful school, entering into a federation or collaborating with national leaders of education to ensure improvements.

Therefore, my answer to the hon. Member for Sefton Central is, “What’s not to like?” The provisions actually came into being under the previous Labour Government in the 2006 Act, albeit only with Conservative support in the Lobbies. It is a good measure and we are simply extending the same power that the 2006 Act gave to local authorities to regional schools commissioners, who must act reasonably, which is important. The common law requirement to act reasonably has filtered through the debate. Public bodies, including the Secretary of State and those acting on her behalf, are required under principles established through case law to act reasonably, rationally, lawfully and fairly. They can be held to account by the courts if they fail to act in accordance with those public law principles. The Secretary of State is also directly accountable in this House for the actions of regional schools commissioners through Education Question Time and parliamentary written questions.

The five years of the coalition Government saw many successes, one of which was sorting out the economy and bringing us back from the brink of financial ruin. There are other examples across Whitehall, but I want to cite that 1.1 million more pupils are in “good” or “outstanding” schools today than in 2010, and that 100,000 six-year-olds are reading more effectively today than in 2011 as a consequence of our reforms to the teaching of reading through phonics. That figure of 1.1 million was achieved through a whole range of measures, in particular the academies programme, which, again, was started under Labour and was turbo-charged by the previous Government. There are 1,100 sponsored academies that started life as under-performing schools, which is a colossal achievement that has led directly to over 1 million children being taught in “good” or “outstanding” schools.

The hon. Member for Sefton Central also mentioned localism and questioned whether the Conservative party is truly committed to it. Yes, we are—as he almost acknowledged. The academies programme is taking  such powers to the frontline and to teachers and professionals. The academies programme is all about autonomy for professionals. It is not about delegating to another statutory body; it is about giving powers directly to teachers, so that they can do their best for the children in their schools.

Regional schools commissioners do not intervene or interfere in schools that are performing well. They are only interested in intervening when schools are underperforming.

Photo of Bill Esterson Bill Esterson Labour, Sefton Central

On the point about so-called increased autonomy, the Education Committee heard evidence that schools that are in chains now have less autonomy than they did when they were maintained. How does the Minister explain that as a localism success?

Photo of Nick Gibb Nick Gibb Minister of State (Education)

I don’t buy that argument. Groups or chains of academies are all about collaboration between the professionals within those chains. Those chains are often led by former or current headteachers. It is about collaboration, working together and finding a common vision. The most successful academy groups are those with a central, core vision that is developed by professionals within the chain. That best practice is then rolled out, which is how very successful chains such as Ark and Harris have managed to deliver remarkable achievements in some of the most deprived parts of the country.

The hon. Member for Birmingham, Selly Oak responded to my example of Henley Green, but I must tell him that the warning notices are not for “inadequate” schools; they are separate provisions in the Bill and the 2006 Act for schools requiring action because they need to improve and are underperforming for other reasons—for instance, poor SATs results, as the hon. Gentleman cited. That was the case with Henley Green. During the process, the results did rise above the floor, but we are talking about the floor standard. The Government agreed to withdraw the direction but maintained that it was justified at the time. We do not resile from the direction being the right thing to do. As a consequence of action, the school’s standards rose above the floor.

The hon. Member for Stockport raised concerns about brokers.

Photo of Nick Gibb Nick Gibb Minister of State (Education)

Southport; I apologise. The hon. Member for Southport raised concerns about brokers. We expect very high standards from brokers. While they are not civil servants, we certainly expect them to follow civil service standards of behaviour. Brokers are commissioned by officials from the Department to visit schools and report back to officials on the discussions they have had. If they are not meeting the high standards we expect of them, the hon. Gentleman should send us more details and we will investigate. In my experience of dealing with brokers, they are very professional people who are determined to raise standards.

I hope that I have dealt with all the concerns raised, and I urge the Committee to support clause 2.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.