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Having listened to the debate, however, I have concluded that it would be appropriate to strengthen this discretion to provide an even stronger safeguard for heads and governors. So subsection (2) of new clause 17 will amend the ASCL Act to allow the ombudsman discretion in cases where the complaint is "frivolous or vexatious".
This will ensure not only that the ombudsman will be able to decide not to pursue complaints that are clearly not in the best interest of parties concerned-vexatious complaints-but also that he has a clearly stated power to decline or discontinue investigation where complaints obviously lack merit or would be disproportionately costly to investigate, given the potential benefits-that is, frivolous complaints. I hope that hon. Members will welcome this change.
Subsection (3) of new clause 17 is a technical amendment extending defamation privilege to head teachers. It amends section 216 of the ASCL Act to ensure that any statement made by a head teacher in correspondence with, or subsequently published by, the ombudsman in a decision does not lead to the ombudsman or head teacher being sued for defamation. This small but important change will enable head teachers to be entirely candid in their views, and permit their evidence to be given and considered more openly, which can only promote the proper investigation of complaints. The amendment merely extends to head teachers the protection that already applies to governing bodies and local authorities under the Local Government Act 1974 or the ASCL Act.
We have made it clear in previous debates on the guarantees that it is not our intention to enable parents and pupils to pursue civil claims through the courts if a local authority, governing body, other proprietor of a school or head teacher does not meet one or more of the guarantees. However, we listened to Members' concerns in Committee-including points raised by the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb)-and we agree that this could be made more plain. The amendment will ensure that this is clear on the face of the Bill.
The amendment refers to "liability in tort", which covers, most importantly, both liability in negligence and liability for breach of statutory duty. It will put beyond doubt that parents and pupils will not be able to pursue claims for damages through the county courts based on the individual guarantees in the document. It is, of course, right to say that parents and pupils already have a number of pre-existing rights, which will be unaffected by the changes implemented by the amendment. It will apply solely to the impact of the guarantees themselves. The amendment does not need to seek to prohibit a claim under contract law, as there is no way in which the guarantees can create contractual relations between schools and parents. We consider that any claim for contractual liability would be entirely unsustainable.
I hope that those brief introductory remarks will show that I have listened to the points raised by the hon. Members for Yeovil (Mr. Laws) and for Bognor Regis and Littlehampton, and tried to take them into account and include them in the new clause and the amendment, as I said I would.
Mr. Nick Gibb (Bognor Regis and Littlehampton) (Con):
I am grateful to the Minister for his courtesy and careful consideration of the deliberations in Committee, but the Government new clause is a frank admission that the pupil and parent guarantees set out in clauses 1 to 3 are likely to lead to a proliferation of complaints. That is likely to happen, however, with or without the new clause, when we have an education system in which 9 per cent. of boys leave primary school without being
able to obtain any grade in the key stage 2 English SATs. In other words, they are leaving primary school completely illiterate. Given that we also have an education system in which 40 per cent. leave primary school without having mastered the basics of reading, writing and maths combined, there is plenty of scope for complaints under these guarantees, particularly under guarantee 2.2, on page 24 of the guarantee document, which states that
"the curriculum is tailored to...every child's needs so that...every...pupil receives the support they need to secure good literacy, numeracy and ICT skills, learn another language and about the humanities, science, technology and the arts".
The new clause amends the Apprenticeships, Skills, Children and Learning Act 2009, particularly sections 207 and 216, which relate to the complaint procedures that are the mechanism under which the guarantees can be enforced-to the extent that they can be. As the Minister has said, the new clause is designed to change the complaints procedure so that the local government ombudsman does not have to investigate complaints that he considers to be "frivolous"-an addition to the word "vexatious", which is already in the Act.
"the creation of these guarantees will open the floodgates for increased litigation against schools. The introduction of these guarantees has the potential to create a 'whingers' charter' and bring a proliferation of frivolous complaints by a minority of litigious parents, thereby serving to increase the work load of school leaders and undermine the work that schools have done to create more positive relationships with parents."
It is obviously right to ensure that the local government ombudsman does not have to investigate frivolous or vexatious complaints, and it is right that head teachers are protected from defamation suits in their communications with the local government ombudsman on these matters. There is absolutely no guarantee, however, that the ombudsman will be able to remedy any of the complaints about the standard of education provided. Tony Redmond, the current local government ombudsman, said in evidence to the Committee:
"I do not think that it is the role or responsibility of local government to change a school". --[ Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 5, Q11.]
"we are also conscious of the fact that in terms of the curriculum and teaching, some of those things might step outside the jurisdiction of the ombudsman". --[ Official Report, Children, School and Families Public Bill Committee, 19 January 2010; c. 7, Q5.]
Government amendment 67 is, as the Minister has said, a concession to both Opposition parties following our amendment in Committee that sought to make it clear that the pupil and parent guarantee did not create legal obligations under either the law of contract or the law of tort. Our original amendment said:
"A pupil or parent guarantee shall not be capable of creating any obligation in respect of whose breach any liability arises in contract or tort."
That amendment was lifted almost word for word from section 111(6) of the School Standards and Framework Act 1998, which was introduced to prevent home-school agreements from being enforceable in the courts.
We believe that the Bill as originally drafted would have left open the possibility that the pupil and parent guarantees could be enforced through court action against schools that might breach those guarantees. That also concerned the teaching unions. The Association of School and College Leaders, for instance, said:
"ASCL believes that the creation of these guarantees will open the flood gates for increased litigation against schools."
"Our main concerns about the Bill are around the guarantees and potential in an increasingly litigious society for parents to take up an awful lot of head teachers' time in disputing what are rather uncertain and woolly guarantees." --[ Official Report, Children, Schools and Families Public Bill Committee, 19 January 2010; c. 4.]
"NUT head teachers are concerned that without adequate resources or provision for staff training these proposals may leave schools vulnerable to litigious parents or over-eager lawyers who have misinterpreted the Government's intentions. The NUT is concerned that any breaches of the guarantees should not be treated as akin to breaches of statutory duty in the health and safety sphere granting persons distinct rights to legal action and monetary compensation."
In Committee, the Minister said that he agreed with the sentiments expressed in the amendments, and would return to the issue after examining it further. He also said, however-as he said a moment ago-that he did not think it necessary to include the explicit reference to the law of contract. He said:
"The guarantee document does not create a contract between parents or pupils and the school, because it is a public law document." --[ Official Report, Children, Schools and Families Public Bill Committee, 28 January 2010; c. 254.]
It is clear from Government amendment 67 that the Government have only explicitly ruled out tort, and I think that that is a mistake. The creation of guarantees implies, or could imply, a contractual obligation. The only thing missing is a consideration to give rise to a contractual obligation, but surely the consideration in this instance is taxpayers' money. If the complainant is a taxpayer or council tax payer, surely that might be regarded as the consideration element of a contract, implicit in the pupil and parent guarantees in clause 1.
As for its being a public law document, surely that would apply equally to a home-school agreement, but the drafters of the School Standards and Framework Act 1998 considered that an explicit exclusion of liabilities under contract law as well as tort law was necessary.
Mr. Coaker: The hon. Gentleman is making an interesting point, but does he not agree that there is a difference between this Bill and the 1998 Act? The home-school agreement is obviously a contract-a specific contract between home and school, which people must sign. It is relevant to an individual parent, an individual pupil, an individual school and an individual family. That is why the Act excluded it in terms of contract. The position in the Bill is entirely different. It is not necessary to rule out contracts, because no contractual agreements arise as a result of the guarantees in the Bill.
Mr. Gibb: That says something about the extent to which the Minister feels that the guarantees are worth anything. Normally, if a private sector service provider gives a guarantee for the quality of his or her work, that is regarded as a contractual guarantee, just as the home-school agreement could constitute a guarantee. Although the Minister may well be right, I believe-this was the thinking behind the provision in the 1998 Act-that it is safer to include this provision in the Bill to ensure that that no action can be taken under contract law in future. There is surely no harm in including it.
Mr. Coaker: I am not a lawyer. We have had this discussion before, and the hon. Gentleman has conceded that he is not a lawyer either. I am advised, however, that there is no contractual agreement. I can see that a home-school agreement, involving the signing of a specific document, constitutes an individual contract between the pupil-or parent-and the school, but I see no analogy between that and the guarantees in the Bill.
Mr. Gibb: If the guarantee is a real guarantee, there is a high likelihood that it will give rise to contractual rights. If, however-as is probably the case, which is why I will not be calling for a vote on this issue-the guarantees are not really worth very much and this is merely political posturing, the Minister is right, and it will not be possible to enforce these provisions in the courts, regardless of whether that is explicitly ruled out in the legislation.
The guarantees represent an expensive and bureaucratic approach to trying to raise standards in our schools. They are, in effect, the last refuge of a Government who know that they have not delivered. This new clause and amendment go some way towards mitigating the downside of some of the implications of the pupil and parent guarantees, however. For that reason, we will not oppose them-but they will not create one single thing that will help to raise standards in our schools.
Mr. David Laws (Yeovil) (LD): I start by thanking the Minister for Schools and Learners and his team for the generally productive approach they took in Committee, and I also thank him for starting today's debate with a small olive branch of consensus, before we move on to the dissent that is likely to permeate the rest of our debate. He has listened, to some extent, to the criticisms of clauses 1 to 3, and in response he has offered some small and rather modest gifts to the Committee and the House to try to dispose of a few of the problems that will arise if the guarantees are ever implemented, which we must doubt. We support him in seeking to remove "frivolous" complaints, and we agree with his points about not creating legal rights that could result in legal action, with parents and pupils suing for damages.
However, our main problem with clauses 1 to 3-in this regard I agree with the hon. Member for Bognor Regis and Littlehampton (Mr. Gibb)-is that the Government have drawn up the pupil and parent guarantees in such a vague and unhelpful way. Goodness knows what the ombudsman is going to make of trying to enforce those guarantees, which the Secretary of State and his advisers cobbled together one evening a few months ago. No ombudsman will be able to make a serious job of enforcing the types of obligations and supposed guarantees set out in the White Paper.
The hon. Member for Bognor Regis and Littlehampton cited just one of the flawed pupil guarantees. I have cited in the past, and shall cite again in future, the pupil guarantee that specifies that every 11 to 14-year-old should enjoy
"relevant and challenging learning in all subjects",
"personal, learning and thinking skills so that they have strong foundations to make their 14-19 choices."
We are told that that will be phased in by September 2010. The Minister is a fair-minded person who must know that our criticisms are entirely right, and I put it to him that it will be impossible for any ombudsman service, regardless of how many staff it has, to make head or tail of most of the pupil and parent guarantees. Indeed, if we read the small print of some of these guarantees, we discover that in the commercial sector people would get into serious trouble for seeking to present them as guarantees.
For example, the guarantees on access to physical education and competitive sport are phrased in such a way that although they give the impression that there is a guarantee of five hours of sport-or culture, or whatever-the truth is that all the Government are talking about is "access" to those things, which could be delivered in a series of very unconvincing ways that would mean that the vast majority of young people would not get five hours of any of them, because they are available in such a way that they cannot be taken for granted. Meanwhile, however, a head teacher-or more likely a Secretary of State-would be able say, "Hurrah, we've delivered all these wonderful guarantees, and young people can have access to these things."
If the Secretary of State had come up with even a couple of sensible guarantees that were outcome focused rather than input focused, and had linked them to giving freedom to schools to make their own decisions about how to deliver them, we might have supported him. He was in the Treasury back in the early days when all those delivery targets were set. They often focused on inputs rather than outputs, and then the Treasury realised that it had got it all wrong. Because he is so experienced and knows all the flaws of setting targets in this way, he should not, as Secretary of State, have come up with such a lot of nonsense: so many guarantees that are unenforceable, or focus on inputs. He must know that he has cobbled these guarantees together on the back of a fag packet. Although he has sought to do that to create some dividing lines for electoral purposes, the guarantees deserve to be put in the waste paper basket before the election, rather than being implemented in such a way that they will be extremely difficult for any parent or pupil to enforce, and will give the ombudsman service an impossible job.
Of course the Liberal Democrats welcome this small olive branch; we do not want to be churlish and we are grateful for all concessions. I hope that I have not struck a note that has implied any lack of charity or enthusiasm -[Interruption] -or, indeed, any churlishness, in response to these small concessions. However, they are very small concessions, they sit on top of a very big problem, and they do not address the flaws in clauses 1 to 3.
I sometimes wonder whether it is worth coming forward with concessions; if those are the reactions that I get for doing so, I will just do full-blown opposition and get on with it. However, I welcome the limited
welcome given to these concessions, and just wish to make a couple of points before allowing us to move on. They are important concessions and changes, and they directly relate to some of the problems that the hon. Members for Bognor Regis and Littlehampton (Mr. Gibb) and for Yeovil (Mr. Laws) set out. We have tried to respond to those so that the document becomes more workable and we do not encounter some of the problems that would have arisen had we not amended the Bill.
The document is being consulted on for 12 weeks-I do not recall exactly how far through that process we are, but it is about seven or eight weeks-and people are responding to that consultation exercise. When my right hon. Friend the Secretary of State and I go to meetings, people talk to us about the guarantees and they do not see them as being fit for the waste paper bin. People are engaging with us about the real effort that we have made to lay out, for the first time, what the state's offer should be to parents and to pupils in terms of state education. This was not a "back of a fag packet" effort; serious discussions took place over a considerable time so that we could put forward a document setting out what a parent and a pupil can expect in terms of education.
Let us go into fantasy land for a moment: if, after an election, we had a Conservative Government or a Liberal Government -[Interruption.] It has come to something when I am barracked by my own side as well. I would have a wager with the hon. Members for Bognor Regis and Littlehampton and for Yeovil that if and when this becomes law, they will not abolish it.
Mr. Coaker: This is an interesting point. I do not believe that they would abolish it, because when it is set out with the guarantees on one-to-one tuition, on sport, on recreation, on culture, on languages, on learning, and on parents being kept informed both online and through proper consultation-through parents evenings and so on-parents, teachers, pupils and the general public will see that, far from being a useless piece of bureaucracy, it is a live document that, for the first time, sets out what the state's offer is on the educational entitlement of the young people of this country. With those brief comments, and having taken note of the overwhelming gratitude that I have received for introducing these provisions, I commend the measures to the House.
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