Mr. Willis: The matter will be raised again during consideration of clause 121. Having heard the Minister's explanation, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 119 ordered to stand part of the Bill.
Clause 120 ordered to stand part of the Bill.
Reference to review body
Mr. Willis: I beg to move amendment No. 121, in page 75, line 43, leave out subsections (3)(a), (b) and (c).
The Chairman: With this it will be convenient to discuss the following amendments: No. 122, in page 76, line 16, after ''118'', insert ''or 121''.
No. 500, in page 76, line 16, after ''section 118'' insert:
''nor may he make an order under subsection (4) of section 121''.
Mr. Willis: Amendment No. 121 would remove the Secretary of State's new powers over the pay and conditions of every teacher in the land. The Secretary of State should justify why those powers are needed as well as the current powers that are provided through the School Teachers Pay Review Body.
Amendment No. 500 recognises that the Secretary of State is trying to overcome a High Court decision granted in favour of the National Union of Teachers. I know that the Secretary of State did not like the High Court action, and I understand why. However, an important point of principle is at stake, which the legislation will overturn. Whether we like or dislike the STRB and the Act that created it, it is an open and transparent system. The Secretary of State will now decide whether an issue is serious enough for her to avoid the affirmative resolution procedure, or consultation through the STRB. The Secretary of State alone can make those decisions, which must set alarm bells ringing for every Committee member. If a Secretary of State has those powers, she will use them because they circumvent a lot of hassle.
The purpose of the amendments is to point out that the powers are unnecessary, and that it should not be the Secretary of State who decides unilaterally that a change is minor. It should be the partners in the agreement who take that decision. None of us would be happy if we had reached agreement, whether we liked it or not, and then found that one party wanted to vary it because that suited their purpose.
In many cases, there will not be any disagreement. Many of the variations to the STRB's recommendation during the last 10 years have gone through without needing an affirmative resolution, and without needing to exercise such powers because there has been general agreement. We cannot believe that every Secretary of State will act in such a benign way. I remind Government Members of what happened between 1988 and 1997. Draconian legislation was passed at that time, part of which had a serious effect on teachers and the morale in our schools, and we are still struggling with that, if I am honest. That is not just a new phenomenon.
I hope that the Minister will take the amendments as a whole rather than spend a lot of time on each one, and that he will respond to the principal issue that I
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have raised about the Secretary of State overcoming the High Court action and trying to legislate to give herself more powers.
Mr. Timms: The issues with which the clause deals have been worked through with the support of the STRB and in recognition of the concern expressed by the chairman of the STRB to my right hon. Friend the Secretary of State that its work load had become too burdensome. In 1991, when the STRB was established, it was never intended that it should be expected to deal with every detail of matters relating to pay and conditions. Given the voluntary nature of that body, it would be unreasonable to expect it to do so.
The 1991 Act sought to make provision for the Secretary of State to deal with some matters. However, as the hon. Member for Harrogate and Knaresborough reminded the Committee, experience showed that the wording of the Act was insufficient to enable that to take place. Subsections (3)(a) and (b) were drawn up in the light of that experience. We plan to ensure that the matters covered by those subsections relate to the criteria for entering or leaving the fast-track teaching programme, advanced skills teacher status, and the standards for crossing the threshold to the upper pay scale. Criteria and standards on all those matters already exist. We are talking about any amendments or revisions that may be necessary. No such changes are currently planned. The Secretary of State set those standards without reference to the STRB until the July 2000 High Court judgment on the NUT case. That state of affairs was generally accepted. We are proposing to return to the position that almost everyone thought prevailed.
I listened with interest to the points made by the hon. Member for Harrogate and Knaresborough. The proposed arrangement is unusual, and is an example of the Henry VIII powers that are frequently, and usually erroneously, referred to in our debates. This is the real thing. I understand the hon. Gentleman's concern about a provision that allows the Secretary of State to use secondary legislation to amend provisions of the Act. I want to reflect on his point, and to consider how we could achieve a requirement for specific consultation in any cases in which clause 121, including subsection (5), applies. I shall revisit the issue after such consideration if that is appropriate. I hope that the hon. Gentleman will find that a helpful response to his concerns.
Mr. Willis: That is a more than helpful response to my concerns. I am glad that the Minister recognises that the guidance and the criteria that were created as a result of the threshold assessment were far-reaching. It is important to have good mechanisms. I regard the clause as a Baroness Thatcher clause rather than a Henry VIII clause. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 121 ordered to stand part of the Bill.
Clause 122 ordered to stand part of the Bill.
Mr. Willis: I beg to move amendment No. 501, in page 76, line 29, leave out 'an employer' and substitute:
'a local authority or the governing body of a school'.
This is a simple amendment, and I hope that the Minister will see the sense of it. Either the local authority or the governing body will be the employer, except for contract staff, which is the issue that we are talking about at the moment. However, even in those circumstances it will be the governing body or the local education authority that buys in the contract staff, unless we privatise the whole of our education system. In which case the employer would, I presume, be a private sector contractor.
In Islington, for example, I do not know whether the Cambridge Education Associates or Islington council employs the staff. I presume that Islington local education authority actually employs the staff.
Mr. Timms: The teaching staff.
Mr. Willis: Yes, the teaching staff. The Government may well move away from that in the future. They may envisage the whole-scale privatisation of parts of the system.
Independent schools will be set up under later provisions of the Bill on academies, and there will be nothing to stop 3Es, to which the hon. Member for Isle of Wight (Mr. Turner) referred this morning, setting up such a school. The Minister let slip, perhaps deliberately, that that company will not be subject to any of the terms and conditions of the STRB. Therefore, it will become a separate employer.
I would like a belt and braces approach to be taken, and to tighten up the provision by specifying in subsection (3) the local education authority and the governing body as the employer. The amendment would ensure consistency of legislation, and that a court would take into account any failure on the part of the governing body or the local education authority to follow the guidance.
Mr. Turner: The hon. Gentleman speculated about Islington, and things may have changed since April last year. I think that in the London borough of Southwark, when the nursery school provisions of the current contract take effect, nursery schoolteachers will be employed by W.S. Atkins.
Mr. Willis: I confess that I am not fully aware of the situation in Southwark, but I think the hon. Gentleman's comment backs up the point that I am making. We should have consistency in this clause, because if something goes wrong and there is an employment problem, an individual needs to have redress through the appropriate body. The guidance that is given to the LEA or the governing body as the employer should be consistent. That is what I am trying to achieve with this amendment.
The Parliamentary Under-Secretary of State for Education and Skills (Mr. Ivan Lewis): I am delighted to see you in the Chair this afternoon, Mr. Griffiths.
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In a sense, the hon. Gentleman answered the question himself. His amendment is not necessary, because for any pay and conditions order under clause 118, the employer must be either a local education authority or a governing body. If there were any confusion or doubt about whether the local education authority or the governing body had failed to follow guidance on some employment issue, it would be irrelevant who failed to fulfil those responsibilities. It could be of concern if someone had failed to fulfil responsibilities under employment law. What would be relevant in any employment tribunal or litigation would be who the employer of the individual was.
As I said, for any pay and conditions order under clause 118 the employer has to be the local education authority or the governing body. It does not refer to any other set of circumstances. On that basis, I urge the hon. Gentleman to withdraw the amendment.
Mr. Brady: On a point of clarification, is it possible to employ teaching staff through a company formed by the governing body under chapter 3 powers? Would such employment be deemed to be by the governing body, or would it be a way of circumventing the application of the section?