Clause
79
The
register
Mr.
Gibb:
I beg to move amendment No. 124, in
clause 79, page 48, line 36, leave
out ‘Chief Inspector’ and insert ‘Secretary of
State’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 125, in
clause 79, page 48, line 40, leave
out ‘Chief Inspector’ and insert ‘Secretary of
State’.
No. 126, in
clause 79, page 48, line 41, leave
out ‘Chief Inspector’ and insert ‘Secretary of
State’.
Mr.
Gibb:
The clause is the provision at the heart of part 4,
which transfers the registration of independent schools from the
Department to Ofsted. The amendments replace “Chief
Inspector” with “Secretary of State” in order to
maintain the current position, under which the registration and
regulation of independent schools lies with the Department. Schools in
the Independent Schools Council are inspected by the Independent
Schools Inspectorate, while those that are not members are inspected by
Ofsted. In addition to opposition to the proposal from the bodies to
which it applies, there is also concern about the quality of the work
carried out by the Department in preparing and researching the
policy.
Jim
Knight:
I am assuming that in talking about schools that
are inspected by the Independent Schools Inspectorate or, if not, by
Ofsted, that the hon. Gentleman is not saying that he does not support
the moves to inform the Bridge Schools’ Inspectorate or the
Schools Inspectorate
Service.
Mr.
Gibb:
No, I am not saying that at all. For shorthand, I
was saying the ISC and Ofsted, but of course the Minister is right and
I should have mentioned the other inspection bodies, and the Focus
Learning Trust as
well.
In addition to
opposition to the proposal, there is concern about the process leading
up to the legislation. Jonathan Shephard said, in his evidence to the
Committee, at question
191:
“If you
look at the regulatory impact assessment, page 14, under the title
‘Analysis and Evidence’, it
says,
‘Independent schools
will benefit from only dealing with
Ofsted.’
But that is
untrue in respect of more than 80 per cent. of the children in
independent education in England who will deal not only with Ofsted but
with the ISI.”——[Official Report, Education and
Skills Public Bill Committee, 24 January 2008; c.
83-84.]
The
consultation document was incorrect too, in a material way, when the
original version was published on 27 July, at the beginning of the
consultation process. It said at paragraph 2.23 that the rationale for
moving registration from the Department to
Ofsted
“has been prompted
by the transfer of boarding school and children’s home
registration and regulation to Ofsted from CSCI from April
2007.”
However, that is
not correct. Ofsted does not register or regulate boarding
accommodation. That remains with the Secretary of State. What
transferred from CSCI to Ofsted was the inspection of boarding
provision. That is not a minor drafting error, but goes to the root of
the rationale for the whole policy, which, according to the
consultation document, is to rationalise the registration and
monitoring of the sector prompted by the transfer
of
“boarding
school...registration and regulation to Ofsted from CSCI from
April 2007.”
Had
the paragraph been worded correctly, that this was prompted by the
transfer of inspection from the Commission for Social Care Inspection
to Ofsted, it would not make sense and would not justify the
rationalisation of regulation and monitoring.
The Government changed the
wording in the consultation document on 5 September 2007, but now the
paragraph is clear that the reason given for the policy does not make
sense. There are two errors of fact——the one that I have
just explained and the fact that there will not be a unified strand of
regulation, registration and inspection. They are fundamental to the
whole explanation and thrust of the policy in the clause and undermine
it
completely.
1.45
pm
As Christine
Ryan, the chief inspector of the Independent Schools Inspectorate, said
in her evidence to the
Committee:
“One
of the thrusts of these proposals reflects the desire to create a
unified body, but that will not
occur”.
However, there are
problems with the policy, too. It is important to keep the functions of
regulation and inspection separate. As Christine Ryan
said:
“One of
the very important functions that we carry out is to check on
regulatory compliance of independent schools. The regulations—as
is the nature of the beast—are often open to some
interpretation. If a school challenges whether or not regulatory
compliance is there or not and we want to be sure, we can go to the
Department and we agree a decision on
interpretation”.——[Official Report,
Education and Skills Public Bill Committee, 24 January 2008; c. 85,
Q193.]
Jonathan Shephard, the
chief executive of the Independent Schools Council,
said:
“As a
matter of principle, it is very important that inspection and
regulation should be separated. Inspections can be wrong. Inspectors
can make mistakes. It is important that when they go to a regulator to
say that there is a problem ... that is a necessary check and
balance. If the inspector goes to itself, that check and balance is not
there.”——[Official Report, Education and
Skills Public Bill Committee, 24 January 2008; c. 84,
Q191.]
The policy to
transfer registration and regulation from the Secretary of State to
Ofsted is not driven by the need to create a unified point of contact
for all registration, regulation and inspection procedures. It is not
driven by the transfer of functions relating to boarding schools from
the Commission for Social Care Inspection to Ofsted, because that
relates to inspection, not regulation. It is not good policy, because
it will remove an important separation of functions and instead set up
conflicts of
interest.
Once those
things are taken out of the equation, the only reason that is left is
efficiency savings. Paragraph 2.1 of the consultation document
says:
“We
believe that it would be more efficient to transfer the registration
and monitoring functions for education provision from DCSF to Ofsted
thereby creating a single regulatory body for independent
schools.”
Leaving aside
the obvious point that the measure will not create a single regulatory
body for independent schools, because Ofsted does not register or
regulate boarding, welfare and independent schools, let us look at the
simple efficiency argument from the point of view of the Government and
of tax payers.
The
registration and regulation of independent schools are carried out by
the independent education and boarding team in the Department for
Children, Schools and Families. On 9 January, the Minister responded to
a parliamentary question I had tabled, and said:
“There are currently 18.2
full-time equivalent (FTE) posts in the Department’s independent
education and boarding team.”—[Official Report, 9
January 2008; Vol. 470, c.
655W.]
I do not know whether
Miriam Rosen, the director of education of Ofsted, or
Roger Shippam, the deputy director, knew about that answer. When she
gave evidence to the Committee on 24 January, she was
asked:
“How many
members of staff would you need to run the registration and monitoring
of the independent
sector?”
She
replied:
“We are
still working on the exact numbers. I am not quite sure exactly what
numbers we will need to transfer to us, to do that
work.”
She then suddenly
said:
“We think
it will be about 10.”——[Official Report,
Education and Skills Public Bill Committee, 24 January 2008; c. 95,
Q225.]
In answer to a question
from the hon. Member for Yeovil, she
replied:
“I do
not know the exact costs because we are still working on them with the
Department.”——[Official Report,
Education and Skills Public Bill Committee, 24 January 2008; c. 96,
Q228.]
I am not sure where the
figure of 10 came from if they are still working on the costs. It is
all very odd, but I will say nothing stronger than that, Mr.
Bayley.
Stephen
Williams (Bristol, West) (LD): Is the hon. Gentleman aware
that Ofsted has been asked to achieve some very challenging expenditure
reduction targets? When representatives of Ofsted last appeared before
the Select Committee on Children, Schools and Families, of which I was
then a member, it was some way off meeting those targets. That may
explain the confusion over the head count and the
budgets.
Mr.
Gibb:
If that function was transferred to Ofsted, I would
very surprised if it were carried out by 10 people. I look forward to
monitoring that matter as an Opposition Member through parliamentary
questions, or by asking Ofsted directly as a Government
Member.
Mr.
Heald:
When replying to a question that I put to her in
that evidence session, Ms Rosen agreed that we would need a procedure
for dealing with the sort of disputes that my hon. Friend has outlined.
That procedure would not be the responsibility of the part of Ofsted
that we are discussing. There would have to be a separate organisation,
so there would clearly be staffing demands for that as
well.
Mr.
Gibb:
My hon. Friend makes a good point. It would be
expensive, too, because the people involved would have to get up to
speed with the matter, as they would not have dealt with it regularly
as part of the independent schools team in the
Department.
The
existing arrangements work well. Christine Ryan said in her
evidence:
“That
link and that contact with the Department works very smoothly—it
has a dedicated team who know our system very well. Ofsted is already
having to cope with a very large number of changes from the other
duties it has taken on. If this transfer happens now, we are concerned
about the loss of that
communication.”——[Official Report,
Education and Skills Public Bill Committee, 24 January 2008; c. 85,
Q193.]
This is
one of the management issues that the Government do not understand.
They fail to understand human
frailty. They created a tax credit system that is too complex to be
administered smoothly, and they took responsibility for the monitoring
and supervision of banking away from the Bank of England, with which it
had been for centuries, and gave it to a new bureaucracy, the Financial
Services Authority. The FSA flunked its first test by merging Customs
and Excise with the Inland Revenue, not understanding that the academic
disciplines of the tax code are very different from VAT and excise
duties, to create the administrative shambles that is Her
Majesty’s Revenue and Customs. I am sure that the same will
happen under this
provision. In paragraph
36 of its written response to the consultation, the Independent Schools
Council
stated:
“There
is an implication in the proposals that the Department wishes to
transfer responsibility for regulation and registration as part of the
process to remove its operational responsibilities. However, ISC would
argue that this is not a reason in itself: administrative convenience
should feature low in any list of factors justifying reform of a
statutory regulator. We recognise that other functions of the Secretary
of State may have been transferred over the last few
years—student loans, pensions, IT advice etc.—but these
are, we submit, wholly different functions from those of a regulator.
As a matter of
principle”—
I agree
strongly with this
point—
“ISC
believes that, as in the maintained sector, responsibility for
overseeing the regulation of the independent sector should rest with
the Secretary of State, accountable in and to Parliament, rather than a
non-governmental public body such as Ofsted whose officers report to
the Education and Skills Committee only twice a
year.”
In
addition to those arguments of substance, there are genuine concerns
about the consultation process as a whole. Jonathan Shephard said in
his evidence to
us:
“It is quite
clear that the consultation did not follow Cabinet office guidelines in
that ISI, an important stakeholder, was not consulted as it should have
been, in advance of the consultation going out.”
Christine Ryan
said:
“The
simple answer to your...question about whether we were consulted
prior to the formal consultation is,
no.”——[Official Report, Education and
Skills Public Bill Committee, 24 January 2008; c. 85,
Q194.]
In his response, the
Minister cited a letter dated 9 May 2006, from Penny Jones. Since then
Jonathan Shephard has written to the Committee. He wrote on 4 February
that the letter to which the Minister referred stated that the transfer
of regulation would
be
“subject to a full
consultation with all independent
schools”.
He said that the
consultation
“was expected
to be in autumn 2006. It never happened. There is no record of any ISC
school being consulted, and we are not aware of any non-ISC school
being consulted. The Committee should note that the letter specifically
asks me not to share the contents of the letter with member schools,
and therefore I could not have consulted them on the basis of the
letter.
For the
Minister to imply that this letter was (or even approached) adequate
consultation is unsound. The reality is that there was no effective
consultation with ISC or with its member
schools.”
Jim
Knight:
Does the hon. Gentleman not accept that when that
letter was written, the ISI was part of the
ISC?
Mr.
Gibb:
I am not addressing that point. Jonathan Shephard
did not mention whether the ISI was different from the ISC, but the
organisations were very different bodies based in different premises,
even though they were legally part of the same body. His point was that
the schools were not consulted, and that he was not allowed to consult
them. Although he had received the letter, was happy to read it and
could discuss it with Christine Ryan of the ISI, he was not allowed to
discuss it with ISC schools, which is how a representative body should
conduct itself. He could not just come up with an opinion of his own;
he needed to discuss the matter with the schools but could not
do so, because of the contents of the letter. A real
consultation did not
happen.
If the
Government introduces legislation and there is hostility and concern
from the bodies to which the legislation directly relates, the Minister
has a duty to reflect on that. I hope that in his response he will
indicate that he intends to give further consideration to the valid
points raised in the very detailed briefings given to members of the
Committee.
Jim
Knight:
The hon. Gentleman has raised all sorts of points,
and I will respond to them as briefly as I can. This clause proposes
that responsibility for the registration and regulation of independent
educational institutions be transferred from the Secretary of State to
Ofsted. In doing so, the chief inspector will have responsibility for
the registration of new institutions. Applications for registration
will be made to her, she will determine those applications and enter
successful institutions on the register.
The chief inspector will also be
responsible for approving certain changes to provision in independent
educational institutions. She will have broader monitoring and
enforcement powers under this clause, including powers to remove
institutions from the register. It will be the chief inspector who has
day-to-day contact with independent educational institutions.
Concentrating registration and regulation in one organisation will
reduce red tape, particularly for the 1,180 smaller independent schools
not in the Independent Schools Council or the Focus Learning Trust.
Under current arrangements, non-affiliated schools have to deal
directly with Ofsted and DCSF. Many ISC schools already have a
relationship with Ofsted, as well as with DCSF, either because Ofsted
inspects boarding provision in ISC schools or because it registers or
inspects their child care provision.
Overall, 2,019 out of 2,359
independent schools will see a reduction in bureaucracy as a result of
these changes. That is because, in future, they will deal with an
independent inspectorate and Ofsted rather than with an independent
inspectorate, Ofsted and DCSF, or because they will have to deal only
with Ofsted, rather than with Ofsted and DCSF. Importantly, the
remaining schools will see no increase in burdens and therefore will
not be disadvantaged. It will also be a more efficient way for the
Department and Ofsted to operate. Unlike at present, there will be no
need for paperwork and reports to be shuttled backwards and forwards
between the organisations, and Ofsted will be able to draw on the
significant body of expertise it has built up in this area. We have not
reflected that in the impact assessment, because the estimate of cost
savings
has not been made. It is a benefit, and the impact assessment tends to
focus more on costs than on benefits. It is worth my saying, however,
in response to the exchanges we have just had, that I anticipate
significant savings. I cannot predict whether we will move from 18.2
members of staff to approximately 10, but savings will be made, because
Ofsted has well-established and substantial computer and other systems
to deal with its existing regulatory functions. Those systems can be
extended to cover independent schools work, and there will no longer be
the need for DCSF to retain separate systems.
Staff at Ofsted can be deployed
flexibly to cover peaks and troughs across the full range of its
operations. It will no longer need to pass information to DCSF for
consideration. All deliberative and administrative work can be done
within the same organisation, and they can combine regulation of
boarding, child care and education in individual schools, cutting down
on duplication in cases where different inspectors check broadly
similar requirements for different
regulators.
Stephen
Williams:
The Minister has given the impression that this
is an act of kindness for the independent school sector, reducing their
red tape and the necessary number of engagements with
officials in his Department and at Ofsted. If such a neat
arrangement is appropriate for the independent sector, why does he not
consider legislating to streamline the regulation of the state sector
along the same
lines?
2
pm
Jim
Knight:
Regulation of state-maintained schools is carried
out largely by local authorities. There is a separate inspection by
Ofsted, which is an important part of regulation, maintenance of
standards and accountability in the maintained school system. I do not,
however, think that the two are directly comparable, because of the
important role of local authorities and their accountability to local
communities. I have no reason to doubt Miriam Rosen’s statement
to the Committee that the transfer will result in the efficiencies that
I have set out. Ofsted has already put in place processes to deal with
the regulation of almost 100,000 child care providers and 2,000
children’s homes. Setting aside the strong arguments for
reducing bureaucracy, which provide support for the proposals, I will
touch briefly on some of the other misplaced concerns that we have
heard.
One such concern
is that the transfer of registration to Ofsted and the other provisions
in part 4 of the Bill are part of a wider process of
“Ofsted-isation”—a horrible word—in the
independent sector. I want to reassure the Committee on two points.
First, I do not see Ofsted-isation in the negative way that the term
was meant or in the negative way that it sounds. Ofsted has an
outstanding reputation. One need only look at the statistics: last
year, about 30,000 inspections were conducted, and there were only 26
complaints to the independent adjudicator. That is the crux of the
discussion on part 4. I am striving to put in place a system that will
provide a better service to the majority of institutions in the sector.
Ofsted will be able to do
that, even for ISC schools, whose concerns were fully represented by the
hon. Member for Bognor Regis and
Littlehampton. Secondly,
I would not want Members to take from my arguments for Ofsted-isation
the belief that there are plans afoot to introduce greater regulatory
strictures for the independent sector. Part 4 is deregulatory,
concentrating operations in bodies that are best placed to deal with
them. The Secretary of State will continue to set the standards against
which independent educational institutions are judged. I agree that
flexibility and choice are important in the independent sector, and
that is why clause 90 provides for the Secretary of State to appoint
independent inspectorates for groups of independent educational
institutions. I am sure that we will discuss that later. The fact that
we are willing to let other inspectorates emerge does not smack of
Ofsted-isation.
Other
arguments against the transfer have intimated that
some ambiguous or misleading wording in the
consultation documents renders the whole legislation and its rationale
invalid. I recognise that some of the wording could be seen as
misleading. As soon as the wording—to which there has been
reference—on the regulation of the welfare provision was brought
to the attention of officials in my Department, the
consultation document was altered on the website. However, the whole
consultation was not rendered invalid by a few
sentences.
Mr.
Gibb:
Will the Minister give
way?
Jim
Knight:
In a minute. May I get my argument out first? The
consultation, when read in its entirety, made clear exactly what the
proposals were. The Committee will also be reassured to hear that none
of the organisations from which we heard evidence missed the
consultation. Of the 337 responses received during the consultation on
the transfer of registration, 257 were from ISC member schools. To say
that those schools were not consulted or that they did not hear about
the consultation is palpable nonsense. On 6 July 2007, Mr.
Shephard was offered the chance to go through the consultation document
with departmental officials. He never took up that offer. As 257 of the
337 responses, many of them in a standard campaign format, were from
ISC member schools, I would say that we have had full consultation with
that sector. The Independent Schools Inspectorate also responded in
full to the
consultation.
Mr.
Gibb:
We are talking about the pre-consultation process,
not the consultation itself. If the wording in the consultation is
wrong, but is given as justification for creating a unified body, when
it will not do so, does the Minister not accept that that is not simply
a drafting error to be corrected, but exposes a fundamental flaw in the
whole thrust of the
policy?
Jim
Knight:
What we were suggesting in the
whole consultation was perfectly clear, despite that inaccuracy, which
was corrected. I do not accept that the argument stands or falls on
that. The hon. Member for Bognor Regis and Littlehampton and I simply
disagree.
One further objection to part 4
has been put forward, based on the so-called principle that
registration and inspection should be kept in separate bodies. It is
not clear to me where that principle is set down. It is certainly not
borne out by other examples across the public sector. In the health
sector, for example, the Healthcare Commission regulates and inspects
private hospitals and independent clinics against national minimum
standards set by the Department of Health. To use the ISC’s
word, if it is a “referee” that the independent sector is
looking for, the sector can, I hope, be reassured.
Part 4 introduces new appeal
rights to the Care Standards Tribunal. We plan to extend the role of
Ofsted’s independent adjudicator to cover complaints about the
quality assurance of independent inspectorates. Ultimately, the
Secretary of State, by laying regulations in this House, retains
overall responsibility for setting the regulatory regime in the
independent
sector.
Mr.
Heald:
The Minister will recall that I asked Ms
Rosen about that. How will he accomplish the extension of the role of
the adjudicator? Will it be in legislation or is it an administrative
act? When will it happen, because it is clearly important that there
should be a
referee.
Jim
Knight:
I have just said that the Secretary of State, by
laying regulations in the House, retains overall responsibility for
setting the regulatory regime. Unless it suddenly occurs to me
otherwise, I would answer the hon. Gentleman’s question by
saying that we will do that by regulation. The new appeal rights to the
Care Standards Tribunal against Ofsted decisions are set out in the
Bill. In my view, none of the arguments that have been advanced stand
up to scrutiny. Furthermore, I can tell the hon. Gentleman that we do
not need to regulate to extend the remit of the independent
adjudicator. It is something that we can do with Ofsted without having
to legislate.
Mr.
Gibb:
Why then does the Minister not transfer the
registration regulation of the whole maintained sector, as well as
independent schools, to Ofsted, if it is going to be so efficient and
excellent?
Jim
Knight:
My response would be similar to the one that I
gave to the hon. Member for Bristol, West earlier. Most of the
regulation of the maintained sector is carried out by local
authorities. The arrangements for the independent sector and for the
maintained sector are not
comparable.
Mr.
Gibb:
Would not the savings be likely to be even larger?
Registration and regulation is taking place in 150 local authorities of
varying degrees of efficiency, from efficient Conservative to less
efficient Labour ones—I say that tongue in cheek, but the point
is that there are 150 local authorities around the country. The
argument must apply tenfold to the efficiency of transferring that
requirement to Ofsted in comparison with the transfer of
responsibilities from 18 officials in the
Department.
Jim
Knight:
I am not quite sure whether the hon. Gentleman is
proposing that we move registration into local authorities or into
Ofsted. We are debating the registration of independent schools by
Ofsted.
As a
Government, we are committed to rationalising the
complex pattern of multiple scrutiny that service
providers and some inspectors experience, and reducing the inspection
burden and the variety of approaches that are a feature of a system in
which many bodies perform similar tasks. The proposals in this part of
the Bill achieve that goal. Ofsted will be able to provide a better,
more responsive, more cost-effective service to many schools and
independent institutions, integrating the different strands of its
activity to provide the proverbial one-stop shop that we are so keen to
talk about in a variety of settings. In the light of the benefits to
the sector that part 4 will bring, I optimistically ask the hon.
Gentleman to withdraw his
amendment.
Mr.
Gibb:
You will not be surprised to know,
Mr. Bayley, that I am not impressed by the Minister’s
answer. In particular, I am not impressed by his responses on the
consultation process. We are talking about very respectable people: the
chief executive of the Independent Schools Council, and Christine Ryan,
the chief inspector of the Independent Schools Inspectorate. Both those
individuals, and the bodies they represent, are deeply unhappy about
the consultation and how it was carried out. The Minister should
reflect on that unhappiness. Whether or not those bodies were unified
at the time or legally separate is irrelevant. They are unhappy, and
the Minister should reflected on
that.
According to the
transcript of Miriam Rosen’s evidence to the Children, Schools
and Families Committee on 12 December on Ofsted’s work, Ofsted
was
“surprised by the
opposition to these
proposals.”
It
is that surprise that alarms me. There should not be surprises in
Government proposals at this level. Having worked at KPMG for 13 years
before coming to the House of Commons, I can say that the one thing
that was frowned upon was surprises. It is always a sign of poor
management when people are surprised by reaction to a policy. They
should have been aware in advance that there would be problems. Had a
proper pre-consultation process been in place, there would not have
been surprises.
I am
not convinced, either, by the Minister’s explanation of the
policy. He said that there will be no more regulatory strictures, and
that there this will be a more cost-effective service. He said that the
Government were integrating the strands of regulation, and that there
will be a one-stop shop. If that is the case, it applies most to the
maintained sector, which is inspected by Ofsted. I see no reason, on
the basis of what the Minister has said, why that should not be the
case under the Bill, and why he has not proposed moving the
registration and regulation of all 23,000 schools in the maintained
sector from local authorities to Ofsted. That system is bound to be
more efficient if what he said about transferring the process from the
DCSF to Ofsted is as efficient as he said. Perhaps it is the
Minister’s view that the DCSF is deeply inefficient,
particularly while he is there.
Jim
Knight:
That is uncharacteristically
unkind.
Mr.
Gibb:
It is, and I withdraw the remark. It was an unfair
comment.
The
thrust of his argument is that DCSF is inefficient in
its handling of regulation and registration compared with the way in
which that is done in local authorities around the country. That is
inconsistent, and does not make sense. None of the policy makes sense.
The people who use the current regime think it works marvellously and I
do not think we should change things when they are working well. It is
extraordinary, and I wonder, echoing the comments of my hon. Friend the
Member for North-East Hertfordshire, what the driver is behind this
policy. Perhaps the Minister is not aware of what it is. I do not think
it is good policy, and it will not lead to efficiencies. I would
therefore like to test the opinion of the Committee on amendment No.
124, which simply removes the words “Chief Inspector”
from clause 79, and replaces it with the “Secretary of
State”.
Question
put, That the amendment be
made.
The Committee
divided.
The
Committee divided: Ayes 6, Noes
8.
Division
No.
28
]
Foster,
Mr. Michael
(Worcester)
Question
accordingly negatived.
Clause 79 ordered to stand
part of the
Bill.
| 
