Memorandum submitted by Independent Schools Council (E&S 15)
In evidence to the Committee on 29th January the following exchange occurred:
Q 492 Mr. Marsden: Finally, I have a quick question for the Minister on the evidence sessions with Ofsted and the Independent Schools Council, which focused sharply on the reasonableness or otherwise of the Government's proposals. The ISC does not seem to have moved its position at all, but based on its and Ofsted's responses, are you convinced that the requirements that the Bill places on inspection for Ofsted and the ISC remain reasonable and proportionate?
Jim Knight: Yes, I am. Since that evidence session, I have had another look at the territory. The decisions were made by my predecessor at a time when officials consulted the ISC, which was when the ISC and the Independent Schools Inspectorate were part of the same body. In answer to my question, Jonathan Shephard said that the two had separated and were separate legal bodies, but the separation occurred only on 1 January, so when the conversations took place, they were part of the same body. The conversations with Ofsted also took place at that point. Although the measure will make a negligible difference for members of the ISC-the latest figures show that although that number was about 50 per cent., it has just tipped over, and now the majority are not members of the ISC and the independent sector-for the others it can make a significant difference by reducing regulation. For us, as a Department, it will save money, and therefore save the taxpayer.
The clear statement is made by the Minister that "officials consulted the ISC ... when the ISC and the Independent Schools Inspectorate were part of the same body". The Minister says that "the conversations with Ofsted also took place at that point". The Minister further states that "the majority [of schools] are not members of the ISC" and that the claim will reduce regulation. The Minister also states that there will be a cost saving to the Department, and therefore to the taxpayer.
If these statements had been put directly to me when I gave evidence, I would have been able to deal with the points made by the Minister, none of which appear to be sound. Taking them in reverse order:
· The cost-saving claim. Moving regulation from a Government Department to Ofsted is moving a function from one set of publicly funded employees to another set of publicly funded employees. There is no basis for assuming that this will, of itself, save money to the taxpayer. There appears to have been no analysis of what the savings (or additional costs) might be. Without that analysis, the claim of cost-saving cannot be made. The evidence from Ofsted, which immediately followed my own evidence on 29th January, confirmed that no analysis of costs had been made, and that the changes would, in Ofsted's view, make little difference
· The statement that the majority of independent schools are not members of ISC is linked to the definition of "school". An independent school can have as few as five pupils (or even as few as one pupil, if that pupil has special educational needs). Independent schools in membership of ISC educate more than 80% of pupils at independent schools in England. The majority of pupils are, very plainly, within ISC
· The claim of reducing regulation is unsound. Regulation is not reduced by being transferred. If there is indeed a proposal to reduce regulation as a result of the transfer, perhaps the Minister will state how and in what respects. The current proposals replace a system which works well and is logically and administratively sound: i.e. regulation and inspection are separated. Merging them is administratively unsound and, as we said in evidence, is wrong in principle
· The conversations with Ofsted. The wording is unclear, but if the Minister is implying that Ofsted and ISC had discussions at any point this is not the case
· The statement that officials consulted ISC is incorrect. The Minister, in a question to me when I gave evidence, referred to a letter to me from DfES dated 9th May 2006. This is the "consultation" to which the Minister refers. We have obtained a copy of the letter from DCSF - there was no copy in our files - and the letter is attached, so that the Committee can see what it says. The letter states, in terms, that transfer of regulation would be "subject to a full consultation with all independent schools". The consultation, according to the letter, 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. Nor was there any effective consultation with ISI
· The Minister is correct in stating that ISI became a separate corporate entity on 31st December 2007. This formalised what had been the situation in practice for at least the previous five years: i.e. for practical purposes the two organisations were distinct. ISI (not ISC) is the body recognised by the Secretary of State for inspecting schools in membership of ISC, and has its own identity recognised in Statute. At all relevant times ISI has had its own staff, reporting to its Chief Inspector, and operating out of separate premises. The reporting line of ISI staff is not, and never has been, to me. ISI operates with its own budget and under its own management. The management of ISI reports to the ISI Board (formerly the ISI Committee). DCSF/DfES at all material times had a presence on the ISI Committee
· It is clear that ISI was an important stakeholder which should have been consulted. DfES had many opportunities to consult either informally or through attendance at the ISI Committee. This did not happen
· The Cabinet Office Code of Practice on Consultation has plainly not been followed. Leaving aside the lack of consultation with ISI or with any independent school, the consultation fails to meet the basic requirement of being open. The consultation closed only a few weeks before the current Bill was printed. Given the timing, it is plain that Criterion 4 could not be met. Paragraph 4.1 requires that responses should be "open-mindedly analysed". This is not possible when drafting is final before the responses are analysed. Paragraph 4.4 requires "an explanation of how it is proposed to change the process in light of the responses received". Unless there is, now, significant change in the light of responses received, this requirement will not be met.
There are important points of principle and practice for the Committee to consider. We hope that the overriding principle - that regulation and inspection should be separate - will prevail.