Clause 5 - Appointment of interim executive members

Education and Adoption Bill – in a Public Bill Committee at 11:30 am on 9th July 2015.

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Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education) 11:30 am, 9th July 2015

I beg to move amendment 36, in clause 5, page 5, line 4, at end insert—

(a) Where a school has been designated by order under section 69(4) of the School Standards and Framework Act 1998, the interim executive board shall be under a duty to secure that—

(i) the religion or religious denomination of the school is preserved and developed, and

(ii) the school is conducted in accordance with the school’s instrument of government (except in relation to the composition of the governing body) and the foundation’s governing documents, including, where appropriate, any trust deed relating to the school.

(b) In exercising any powers under this schedule, the Secretary of State shall comply with any agreement between the local authority and the appropriate diocesan authority, if any, and person or persons by whom the foundation governors are appointed, in relation to the membership and operation of the interim executive board.”

The amendment is to preserve the religious character of religious schools when the Secretary of State takes responsibility for an Interim Executive Board.

Photo of Alan Meale Alan Meale Labour, Mansfield

With this it will be convenient to discuss the following:

Amendment 37, in clause 6, page 5, line 25, at end insert—

‘( ) Subsection (2) has no effect if the local authority is exercising a power under sections 63, 64 or 66.”

The amendment is to avoid the confusion to a school if the local authority is exercising a power of intervention.

Amendment 38, in clause 6, page 5, line 39, at end insert—

‘(3) A notice by the Secretary of State under this section cannot take effect until 21 days after it has been given.”

The amendment is to provide for an orderly transition from a local authority established IEB to a Secretary of State directed IEB.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I welcome everyone back, and it is a pleasure to serve under your chairmanship again, Sir Alan.

Amendment 36 is intended to preserve the religious character of religious schools when the Secretary of State takes responsibility for an interim executive board. Amendments 37 and 38, for the benefit of Members who  have not sat on many Bill Committees in the past, refer to the next clause—clause 6. Amendment 37 is intended to avoid confusion to a school if the local authority is exercising a power of intervention. Amendment 38 is intended to provide for an orderly transition from a local authority-established interim executive board to a Secretary of State-directed interim executive board.

The aim of the lead amendment is to put in place safeguards to prevent regional schools commissioners perhaps unintentionally undermining the Church-appointed majority of an interim executive board. Usually such a board is put in place following discussions between the local authority and the diocese, with carefully considered agreements as to its operation, including in relation to its members. To that end, the diocese and local authority agree a memorandum of understanding, which enables the school to continue to comply with its trust deed through a Church-appointed majority on the interim executive board.

The Catholic Education Service has made representations on how the clause might affect Catholic schools. Should regional schools commissioners intervene and appoint their own members to an interim executive board without regard to the Church-appointed majority, the CES says that the school would then cease to be a Catholic school. Once a school is no longer recognised as Catholic by the bishop, it is no longer complying with its own trust deed, presumably forcing a closure that ultimately undermines the intention behind an interim executive board, which is to prevent the closure of the school, as well as to bring about the necessary improvement.

That issue could apply to a school of any faith. The purpose of the amendment is to ensure that the appointment of an interim executive board does not undermine, inadvertently or not, the faith character of a school. The amendment has been drafted with the agreement of the Catholic Education Service. It would provide the safeguards that faith groups are asking for without in any way undermining the process of school improvement. It also illustrates the complexity of governance issues and the care that local authorities have taken over the years to work with partners such as dioceses. We hope that Ministers will appreciate how sensitively such matters need to be handled and therefore that they will be willing to accept the amendment. I look forward to the Minister’s response.

Amendment 37, Mr Chope, relates to clause 6—

Photo of Alan Meale Alan Meale Labour, Mansfield

They have called me a lot of things.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I beg your pardon, Sir Alan. I apologise profusely.

I was getting very far ahead of myself and going on to the next clause, but amendment 37 is grouped as it is because it is designed to alleviate confusion for schools that are undergoing an intervention following a warning notice or a poor Ofsted rating. It does not really make sense to create more confusion and uncertainty for headteachers, senior leadership teams and the rest of the school community by having schools undergo various interventions, both from local authorities and the Department for Education. That would obviously not be conducive to effective school improvement, if that is the Government’s intention. If it is another means to force academisation on a school, which might have  found a more effective and appropriate way to improve standards and outcomes for children, they will obviously not agree with this concept. We think that the amendment is sensible and hope that it will get a similarly sensible response from the Minister.

Amendment 38 would also amend clause 6. It requires 21 days’ notice to be given before the Secretary of State may act under proposed new section 70C of the Education and Inspections Act 2006, given that it will be extremely confusing for a school not to know how quickly the Secretary of State’s intervention under this section will take effect. The amendment would allow an orderly transition between interventions. We believe that the amendment is sensible and therefore anticipate that the Government should not really find any reason to reject it—but you never know, Sir Alan; they might come up with something.

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

Welcome back to the Committee, Sir Alan. It is a pleasure to serve under your chairmanship yet again.

The amendments relate to the Secretary of State’s proposed powers of intervention in underperforming schools in order to secure the necessary improvements in standards, and in particular, they relate to the appointment of interim executive boards.

Clause 6, which is the next clause that we come to discuss in more detail, seeks to amend the Education and Inspections Act 2006 by adding three new sections: sections 70A, 70B and 70C. The first new section— section 70A—would ensure that local authorities and the Secretary of State notify each other when they intend to intervene in a school. The second—section 70B— would restrict a local authority’s intervention powers when the Secretary of State is using her similar intervention powers. The third— section 70C—would allow the Secretary of State to take control of a local authority-appointed interim executive board. The new sections aim to ensure that local authorities and regional schools commissioners work together in identifying appropriate interventions in underperforming schools to secure improvement.

Amendment 37, tabled and moved by the hon. Member for Cardiff West, seeks to amend the new section 70B. Clause 6(3) of the Bill states that when a local authority is notified by the Secretary of State that she intends to exercise any of her intervention powers, the local authority’s powers of intervention are suspended. Amendment 37 would mean that if the local authority was already exercising those powers, they would continue to be able to do so even if notified that the Secretary of State and the regional schools commissioners intended to intervene.

The amendment would therefore create confusion. The governing body would be required to comply simultaneously with directions from both the local authority and the regional schools commissioners. It would also mean that the local authority could continue with interventions that the regional schools commissioner for that area had considered to be ineffective. When the regional schools commissioner considers that a local authority’s action is having little or no effect, they should have the power to take their own action without the school being confused or distracted by conflicting interventions. Regional schools commissioners need to be able to take action to secure improvement in that school when improvement may have stalled.

The need to act swiftly and decisively when a local authority’s intervention is not working also leads me to resist amendment 38. It focuses on the proposed new section 70C, which would be inserted in the 2006 Act by virtue of clause 6 of the Bill. That section would ensure that if the local authority has put in place an interim executive board, the Secretary of State can take over the responsibility for and management of that board where necessary. Amendment 38 would have the effect, so ably described by the hon. Gentleman, of requiring the Secretary of State to give the local authority 21 days’ notice before taking over responsibility for that locally appointed interim executive board. In my view, that waiting period would add unnecessary delays to the intervention process in cases in which immediate action is needed. IEBs are put in place to secure rapid improvements in the schools in which they are appointed. Where that is not happening, the regional schools commissioner should have the power to take over the responsibility for the IEB members.

Under the new power in the Bill, the Secretary of State would have been able to take over the responsibility for the IEB members at the Pear Tree school in Derby. That school has a history of underperformance. The local authority appointed an IEB to the school in May 2012, but six months later, after being inspected in November 2012, the school was put into special measures. The Department tried to work with the IEB and issued an academy order, with a strong sponsor, in March 2013, but the IEB would not co-operate, so progress at Pear Tree school remains slow and attainment is not good enough. It is those situations in which the Secretary of State, through the regional schools commissioners, will want to intervene swiftly. Delaying that process by adding 21 days in all cases would not help the children who were being failed in their education.

Amendment 36 focuses on scenarios in which the Secretary of State makes a direction about a local authority IEB in respect of a Church school. The Churches are important deliverers of education in our system, but sometimes Church schools, like other schools, fail, and we have to be confident in our capacity to respond decisively and effectively in those cases, too.

Paragraph 10(2) of schedule 6 to the 2006 Act requires the IEB to comply with the same duties as applied to the previous governing body. That will include any duty to comply with a trust deed, as referred to by the hon. Member for Cardiff West. Members of a Church school’s IEB are therefore bound to preserve and develop the school’s faith character. That is the case even where the Secretary of State uses the new power under clause 5 of the Bill to direct the local authority to appoint specific IEB members. Proposed new paragraph (5B)(a) of that schedule, proposed by amendment 36, is therefore unnecessary, as it simply restates a requirement that already exists.

New paragraph (5B)(b), which is also proposed by the hon. Members for Cardiff West and for Birmingham, Selly Oak, is concerned with protecting the continuing involvement of the relevant diocese where a regional schools commissioner exercises the power under clause 5 to direct the local authority to alter the make-up of an interim executive board in a Church school. It would require the RSC to comply with any existing agreement between the local authority and the diocese about the membership and operation of the IEB.

An IEB is responsible for protecting the character of a Church school, as well as securing educational improvements. When making directions about an IEB in a Church school, regional schools commissioners will be expected to discuss the IEB with the diocese. That includes how it is constituted and what support the diocese might offer, as well as any specific concerns or requirements relating to the school’s character.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I am obviously listening carefully to the wording that the Minister is using, because what we have on the record at this point will be very important in relation to what happens next. He said that regional schools commissioners would be “expected to discuss”. Can he confirm that by that he means that the regional schools commissioners will be required to discuss these matters?

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

The hon. Gentleman should be aware that they are not “required” now. The memorandum that he referred to—the memorandum of understanding between the local authority and the diocese—is agreed only as a matter of practice and not a legal requirement. In the same way, we do not need a requirement in legislation to agree membership between regional schools commissioners and the diocese. However, we have reiterated, or I have done so just now, our desire that these two parties will work together and reach agreements in practice.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education) 11:45 am, 9th July 2015

May I press the Minister a little further on that point? Is he willing to say on the record that, in all cases, he expects RSCs to discuss these matters in the way he outlines?

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

One can never state on the record in parliamentary proceedings the situation in all circumstances, but I am happy to reiterate that, as a matter of practice, it is important that regional schools commissioners discuss the membership of an IEB with the diocese. There may be circumstances, although I am not aware of what they might be, when that is not possible, but the desire is the same kind of desire that is in the memorandum of understanding between local authorities and dioceses to continue with regional schools commissioners. The London Diocesan Board for Schools has submitted written evidence welcoming

“the Secretary of State’s willingness to become pro-active in the formation of IEBs as proposals initiated by the Diocese have not always been acted on as quickly by local authorities as we would like.”

There is therefore support for these measures from the Church.

The purpose of the power is to enable regional schools commissioners to intervene swiftly when they are not convinced that an IEB constituted by the local authority will secure necessary improvements. The amendment would restrict that power by requiring regional schools commissioners to endorse an IEB whether or not they have confidence in it. That contradicts the clause’s purpose, which is to allow the Secretary of State to act decisively on underperformance.

We value the Churches’ important role in our education system, a role that predates the role of the state. Indeed, I have already written to the Second Church Estates Commissioner, my right hon. Friend the Member for Meriden (Mrs Spelman), to reassure her of our continuing desire to work closely with the Church. My letter set out that if the Secretary of State is required to issue an academy order to a Church school that is inadequate under clause 7, there is a requirement under the Bill to consult the diocese on who might be the best sponsor for the school. In other cases of intervention, such as if a Church school is coasting or an underperforming church school has failed to comply with a warning notice, we will still seek the diocese’s views if we propose to make an academy order, as is required by section 4(1)(a) of the Academies Act 2010. We want to ensure that there are effective interventions in underperforming schools both to secure improvement and to protect their ethos. We already have non-statutory memorandums that set out the roles of the Church and the Government in relation to the academy programme. We have offered to review and update those memorandums with the Churches to reflect the changes in the Bill, as well as changes in the wider evolving party landscape. I am pleased that the Churches have confirmed their intention to work with us.

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

Does my hon. Friend agree that the Opposition’s suggestion does not strike the right balance? If we allow discretion to be introduced, including a requirement would go too far and would be restrictive. The current draft strikes the right balance between consultation and inclusion, while allowing the intervention power to be exercised.

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

My hon. Friend is right. The amendment tabled by the hon. Member for Cardiff West would go beyond the current position of discussions between the Church and a local authority. With those assurances, I urge him to withdraw his amendment.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I am grateful to the Minister for his response. If I am going too far, it is only because I have been asked to go too far by the Catholic Education Service, which has been working closely with the Church of England on these issues. I am sure that they will have listened intently to the Minister’s response to the amendment and my interventions. I am pleased that he has put on record the Government’s thinking and their intentions with regard to the responsibility to preserve and develop the character of a school, which he says is covered elsewhere. I am glad that he has taken the trouble to put that on record. We will ponder what he has said carefully and, if necessary, return to the matter at a later stage of our proceedings. I do not intend to press amendment 36 to a Division.

On amendments 37 and 38, the Minister’s example of Pear Tree school did not seem to indicate that a 21-day notice period would be unreasonable. He said that there had been unreasonable delays because the Secretary of State did not have at their disposal the power conferred by the clause, and that if they had had that power, they would be able to act much more quickly in the case of Pear Tree school. Amendment 38 would simply provide for a reasonable period of notice.

I do not intend to pursue the matter further at this stage, but it would be useful to know what is considered to be reasonable. I know that the Minister is well meaning in his wish to take action if a school requires it, as we all do, but this reminds me of something that my father used to say to me: “Come here immediately, if not sooner.” Although our desire to act quickly is commendable, we must be reasonable. People must have the opportunity to respond to action proposed by the state, and we are simply trying to probe the Minister on what he believes a reasonable period to be.

Photo of Flick Drummond Flick Drummond Conservative, Portsmouth South

Twenty-one days is four weeks, which is nearly half a term. That is quite a long time in the academic year, so does the hon. Gentleman agree that we need to get things going pretty quickly?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I have occasionally made the odd mathematical error while on my feet in the House of Commons, so I will not tease the hon. Lady about 21 days being four weeks, but I know what she means. I will interpret her remarks in a generous way by assuming that she is referring to working days, not that Government Members have always been so generous when I have made mathematical errors. I did get a grade A in my O-level which, according to the Minister, is at least a PhD in current parlance.

I take the hon. Lady’s point, but the purpose of amendment 38 is simply to probe the Minister on what he considers to be a reasonable period. I am not sure that we have found out the answer, but at some point I am sure that that we will.

Finally, I turn to amendment 37. As the shadow Secretary of State, my hon. Friend the Member for Stoke-on-Trent Central (Tristram Hunt), pointed out on Second Reading, the clauses on the powers of regional schools commissioners and the actions of Ministers really show the disjuncture in the Bill between the centralisation of power with Ministers and their appointees, and the Government’s professed desire to devolve public services out to the regions. The way forward ought to be a process of pulling together combined local authorities, as the Government envisage doing in other contexts as a means of devolving power. Some might think that that process is a means of cutting expenditure, but let us take it at face value as a means of devolving power around the country. The Bill is not an example of that. Even if regional schools commissioners have local headteacher boards that are entirely made up of academy heads and principals, that is not the sort of devolution of power that is required. Ultimately, the combined authority approach would be much better.

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

The academies programme is about devolving power to academies, professionals and front-line staff, and combining that with strong accountability. This is the model that, according to OECD evidence, works throughout the world to deliver the highest-performing education systems.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I will not test your patience, Sir Alan, by debating at length with the Minister what the OECD actually says; he and I have had such debates in the past. The OECD favours school autonomy in the education  system, and we, too, believe that autonomy is important for schools and that they should not be held down unnecessarily by regulations. However, that does not necessarily mean that there should be no accountability in the system. Here, the accountability is simply to the Minister, who is a long way from those local schools.

The importance of having some accountability at the local and regional level began to be recognised with the appointment of regional schools commissioners. There is an understanding that Ministers actually cannot cope with all the schools that now come under their ambit—they cannot keep an eye on them. Things have gone wrong at lots of academies, and they have been allowed to go wrong because Ministers did not wake up quickly enough to what was going on at local and regional levels. In the past we have proposed ways of trying to bring accountability closer without interfering with the necessary autonomy that professionals and schools should have in running their affairs. That, in fact, has been a trend in our system for some considerable time. 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 Nick Gibb Nick Gibb Minister of State (Education)

The appointment of an interim executive board is one way in which a local authority can intervene in a school that is eligible for intervention. The clause enables the Secretary of State, via the regional schools commissioners, to direct local authorities as to: who the IEB members should be; how many members to appoint; what the term of appointment should be; and the termination of any appointment. That will enable the Secretary of State to contribute to the make-up and arrangements of the IEB when it is felt that the local authority is best placed to take that forward, without the need for the Secretary of State to take complete responsibility for the IEB under the new power under clause 6.

IEBs can be used to drive school improvement when there has been a decline in standards or a serious breakdown of working relationships in the governing body. When used effectively, IEBs can provide challenge to the leadership of a school and secure rapid improvement. The power will help to minimise the number of IEBs that are not working at their most efficient, either by being too big or by having members with incorrect skills sets. A poorly constructed IEB will take longer to make improvements and therefore deny children the quality of education they need and deserve. Regional schools commissioners will work with local authorities to ensure that IEBs secure solid platforms from which their schools can improve. The Bill is about making sure that intervention in underperforming schools is fast, effective and deliverable, and the clause will help to achieve that.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Again, the Minister is taking the power to take over another part of the school improvement process pretty much whenever he wants. As always, no one knows when that power will be exercised because there are no criteria in the Bill to tell us when it might be appropriate, so local authorities will be looking over their shoulders and wondering when their decisions will be interfered with.

Why do Ministers want that power? Are sure that they always know best? Do they not trust anyone else to make decisions? Do they want to ensure that their favoured trustees get appointed? They have a degree of form in that respect, as they have appointed proposed sponsors to interim executive boards in a not very subtle way, thus pre-empting further due process with regard to academisation.

There is no transparency in the IEB-appointing process. No applications are invited, no criteria are published and no reasons are given for the decisions finally made. Those decisions may well be delegated—they probably will be—to regional schools commissioners. There should be a basic requirement for Ministers to take responsibility for those decisions and to be prepared to justify them in public, rather than in the secretive way they currently do. Removing a governing body from a school is a drastic step that will have a substantial and lasting effect. We have tabled an amendment that would require IEBs to be appointed by order so that there could be appropriate scrutiny and Ministers would have to justify decisions in a public forum.

I refer to the evidence given to us by Emma Knights of the National Governors’ Association and by Councillor Richard Watts, on behalf of the Local Government Association. Emma Knights said:

“I do not want to leave this room without mentioning interim executive boards, because there is more than one type of formal intervention and so far the Committee has asked only about sponsored academisation.”––[Official Report, Education and Adoption Public Bill Committee, 30 June 2015; c. 16, Q33.]

She noted the importance of interim executive boards, which we all recognise. From time to time, they should be appointed; that is certainly the case. However, Councillor Watts added:

“One thing I would add is that local authorities face some bureaucratic hurdles in trying to place IEBs on schools that we think need some intervention. One of the changes to the Bill that we would like to see is to give local authorities the power to introduce IEBs without having to go through the process of applying to the Secretary of State, as that allows us to tackle problems more quickly.”––[Official Report, Education and Adoption Public Bill Committee, 30 June 2015; c. 17, Q35.]

It is a one-way process. Local authorities do not get the chance to act “immediately, if not sooner”, but Ministers grant that power to themselves.

Back in 2013, Lord Nash scolded local authorities for not using IEBs enough, but it was pointed out at the time that Ministers themselves had used their power to impose an IEB on only four occasions—another example of Ministers confusing simple structural change for actual improvement.

As with clause 4, the introduction of the coasting schools category will massively increase the number of schools for which an IEB might be considered. It will be harder for Ministers or regional commissioners to know enough about the situation to make properly informed decisions. That is the point I made on Second Reading, as did my hon. Friend the Member for Stoke-on-Trent Central (Tristram Hunt), who said:

“We believe that it is time that decisions to do with new schools and intervention in failing schools were made at a combined authority level. Regional schools commissioners are far too distant  to understand the distinctive context of every school and community in their region and we share the criticism from the National Governors Association of the capacity of commissioners to carry out their functions effectively.”—[Official Report, Second Reading Committee, 22 June 2015; c. 657.]

He went on to say that the Labour party would argue in Committee, as I am doing now, that we should reshape the thinking on having some kind of combined authority level. That would at least mean that if all these additional schools are brought into intervention, there would be a less distant and better-informed local opportunity to understand what was needed and act accordingly. Giving the Secretary of State this unfettered and unscrutinised power risks decisions being made without real understanding of the local situation. Such decisions will not be in schools’ best interests.

At this point, we have a lot of business to conduct, so I do not intend to press the amendment to a vote. However, we might want to return to the broader issue of combined authority on Report.

Question put and agreed to.

Clause 5 accordingly ordered to stand part of the Bill.