Education Bill



1. The purpose of this memorandum is to provide a commentary from the National Union of Teachers – the largest teachers’ organisation in Europe – on the Education Bill. The memorandum sets out the key proposals of importance to the Union and identifies to members of the Bill Committee areas where we believe clarification or amendments would be useful. These issues will be expanded upon in the oral evidence to the Bill Committee from Amanda Brown, Head of the Employment, Conditions and Rights Department at the NUT, on 1 March 2011.

Part 1 – Early Years Provision

2. Whilst welcoming the extension under clause 1 of the free entitlement for early education and childcare for disadvantaged two year olds, this ought to be considered alongside clause 47 which allows maintained nursery schools and classes to charge for any early years’ provision above the 15 hours of the free entitlement for early education and childcare.

3. The NUT is concerned that this will lead to a reduction in provision of free full-time places for disadvantaged children. Combined with the introduction of the Early Years Single Funding Formula in April 2011, which the pilot schemes have shown generally reduce budgets in the maintained sector and make it more difficult to afford to provide free full-time places, this proposal is likely to make the continuation of free full-time places for disadvantaged children unviable economically.

4. The NUT agrees with the Independent Review on Poverty and Life Chances [1] on child poverty by Frank Field MP which stated that: "all disadvantaged children must have access to affordable full time, graduate led early education from age two. This is essential to support parents returning to work as well as child development. If high quality early education is only available part time, parents may have to supplement it with lower quality, cheaper childcare or choose not to return to work".

5. The reference in the Bill’s Impact Assessment [2] that it "it is not yet clear how much training and how many qualifications staff providing the two year entitlement will be required to have" is worrying and puts in jeopardy the Government’s desire for high quality provision. The Government has recently relaxed the requirement for Children’s Centres to employ staff with Qualified Teacher Status.

Part 2 – Discipline

Power to search

6. Whilst recognising the Governments’ good intentions in this part of the Bill the NUT does have concerns about the potential pressure on schools and individual teachers that these extended powers to search may have. Casework evidence shows that teachers are generally reluctant to take on such ‘policing’ roles – particularly given the potential for damage to productive relationships between staff and young people; and the increased potential for litigation if a member of staff chooses or fails to search a pupil who later commits an offence.

7. Clause 2 adds to the list of prohibited items any other item which the school rules identify as an item for which a search can be carried out. A simple Google search of the phrase "primary school rules" illustrates the need for a more careful consideration of these provisions. As a result of these provisions schools might feel they need to revisit perfectly sensible rules such as "sweets, cans and glass bottles are not allowed in school" or "toys should not be brought to school". Head teachers and school staff as well as parents and pupils must be reassured that the expectations around the use of these powers are both sensible and reasonable. The NUT believes it would be helpful if various sections were tightened up for example by adding "serious" and "reasonably" to sub-section 2(2) so that the Bill reads "serious damage to property" and "any other item which the school rules reasonably identify as an item for which a search may be made".

8. Clauses 2 and 3 allow a member of staff to "erase any data or files" on an electronic device before returning it. This provision places the burden of proving that erasure of data from an electronic device was lawful on the person who erases or disposes of that data. This is a serious disincentive to use of the power. It means that a teacher who has exercised the power could be the subject of legal proceedings in which it is up to him or her to prove that the power has been lawfully exercised.

9. If these provisions are to increase teacher confidence in dealing with incidents of serious disruptive behaviour it is vital that teachers and other staff are properly trained - particularly in delicate situations where the pupils are of the same gender or there is no other member of staff present.

Pupil exclusions

10. In the interests of fairness the NUT shares the view of the Children’s Rights Alliance for England and organisations representing head teachers that independent appeals panels should remain and be able to reinstate pupils. There is a danger that the removal of these panels may lead to some parents taking legal action against schools which will involve a great deal more work and unnecessary bureaucracy for the school.

Notice of detentions

11. Clause 5 of the Bill repeals the requirement for schools to provide parents with 24 hours’ written notice of detention after school. If young people do not return home when expected, this could cause a great deal of anxiety amongst families. In the NUT’s view, these safety and practical considerations will probably mean that most schools will probably continue to give parents adequate notice.

Behaviour and attendance partnerships

12. Behaviour partnerships have worked well in most areas and the NUT is concerned that under clause 6 the requirement on schools to enter into a partnership will be removed.

Part 3 – School Workforce

Abolition of the General Teaching Council for England (GTCE)

13. The Bill provides for the transfer of some of the GTCE’s regulatory functions but is silent on functions relating to the registration of teachers. Unless the Bill is amended, the register of the more than 500,000 teachers who have qualified teacher status (QTS), will cease to be maintained. The NUT believes that there is a compelling case to keep the register. Employers rely on the register. There were 676,000 registration enquiries in 2010 – 11. It is unclear how the award of QTS or the elapse of a period of prohibition could be confirmed without such a register. The register also provides valuable information about patterns in the workforce

14. Another important consideration is the GTCE’s current remit which allows it to consider those cases in which teacher competency issues are referred by a school. The GTCE considers whether the teacher is able to meet the standard which is reasonably expected of a teacher, by reference to the GTCE Code of Conduct and Practice.

15. As currently drafted, the Bill makes no reference at all to teacher competency issues, with competency questions determined only at school level. The NUT is concerned that this approach will not provide the same level of consistency or equity for all teachers as the previous arrangements: evidence from the GTCE suggests that ethnic minority teachers, those working in challenging schools and those in their fifties were disproportionately more likely to be referred to the GTCE for competency than any other group. The NUT believes, therefore, that consideration should be given to the establishment of a second-tier appeal body or standard for competency decisions. Such an additional tier would obviously require open and transparent processes and be grounded in real experience of teaching, for it to gain the confidence of the profession.

Reporting restrictions

16. The provisions at clause 13 of the Bill are broadly welcomed as they will guard teachers against publicity while allegations of offences are being investigated or considered. 

17. Clause 13 currently only refers to a "person employed or engaged as a teacher at a school". The NUT would like to see this strengthened by also affording protection to other school staff as well as to staff working in colleges. In addition the Bill only provides protection for teachers if an allegation is made by a pupil currently attending the school. Arguably children who have been excluded from school or have transferred to another school would be more likely to harbour a grudge against a particular teacher at a school they attended previously and make an unfounded allegation.

Abolition of School Support Staff Negotiating Body (SSSNB)

18. The SSSNB has not been given a chance to prove its worth. Along with the school support staff unions, the NUT believes that clause 18 should be dropped from the Bill.

Part 4 – Qualifications and the Curriculum

Requirement for schools to participate in international surveys

19. The proposal under clause 20 to make participation in international education surveys such as PISA or PIRLS is welcome, as low rates of participation have resulted in outcomes from England not being included in the final study because of the unreliability of the sample size.

20. The requirement only applies to community, foundation and voluntary schools. This might result in the sample of schools used in the survey being skewed – academies which were previously deemed to be "outstanding" schools, for example, would not be subject to this statutory requirement.

Abolition of the Qualifications and Curriculum Development Agency (QCDA)

21. It is proposed that most of the functions of the QCDA will reside with the Department for Education (DfE), including the development of the National Curriculum and accompanying supporting materials. It would be helpful to receive assurances from Ministers that there is relevant expert capacity in the DfE to deal with these areas of work and that stakeholders will be consulted.

22. The QCDA also established class room practitioner focus groups, which included equality groups that looked at curriculum issues on race, sex and gender. The NUT believes it is imperative that professional input into the development of the National Curriculum should continue if teachers are to have confidence in what they are expected to teach.

Education and training support services in England. 

23. As with other services, support services to assist young people to stay in education or training have suffered from the Government’s cuts to local authority funding.  Clause 26 repeals section 69 of the Education and Skills Act 2008, which gives the Secretary of State powers to direct local authorities on the exercise of their duty to make such support services available for this purpose as the authority considers appropriate.   It would be of concern if the removal of the Secretary of State’s powers to direct local authorities in this regard – against the centralising grain of the rest of the Bill – is a signal that the Government is content to see reductions in these vital services.

Careers Guidance in Schools in England

24. The Bill under clause 27 amends the 1997 Education Act so that the duty on schools to provide careers education will only apply to Wales. This is a retrograde step unlikely to lead to any improvement in provision of careers guidance for young people.

25. The Bill also removes from schools and colleges in England the duty to give careers advisers access to pupils and students’ information. It would be helpful to receive clarification from Ministers on how information, advice and guidance (IAG) will be provided in these circumstances. Without access to a student’s individual educational progress any IAG may well be less effective.

26. The Bill also proposes a new duty on schools to secure independent career guidance for all pupils in years 9 - 11, but the guidance must be provided by someone not employed at the school. The NUT believes that it is important for careers advice to be provided by adults that know students well and that any new provision should be in addition to current careers guidance.

Part 5 – Educational institutions: other provisions

Duties to co-operate with the local authority.

27. Given that schools have only been required to co-operate with local authorities to improve pupil well-being since April 2010 it is difficult to understand on what evidence basis the Government is seeking to repeal this provision. Clause 30 will further undermine the local authority family of schools.

New schools

28. The Bill, under Clause 36 and Schedule 10, sets out a series of provisions for the establishment of new schools. These provisions further undermine the power, role and functions of the democratically elected local authority; will lead to an increase the number of Academies and Free Schools; and will result in the transfer of public land to Academy and Free School sponsors or proprietors.

29. The presumption is in favour of an Academy regardless of whether this is the best choice locally for a new school. It also means that there is not a level playing field in terms of an open competition between different types of school.

Constitution of governing bodies: maintained schools in England

30. The NUT does not support the proposed change at clause 37. Governing bodies are an important democratic accountability mechanism on the school and they should be broadly representative of the key stakeholders within the school – parents, teachers, pupils, the local authority, community and co-opted governors.

School inspections: exempt schools

31. Whilst "exempt" schools, widely expected to be those which have previously received an OFSTED "outstanding" grade, will no doubt be delighted not to be subject to the standard inspection cycle, this proposal has serious implications for the future monitoring and development of schools. The rationale underpinning the proposal is that inspection visits would be a waste of resources for this group of schools and that effective monitoring can be achieved through desk-based analysis of school performance data and, possibly, other documentation.

32. The implicit message to schools would be that all that matters is results, not the means by which they are achieved, although this is contrary to one of the stated aims contained within the Government’s remit letter [1] for the Key Stage 2 testing and accountability review. In addition, schools can be extremely fragile institutions and susceptible to significant changes in pupil population or staff turnover. Using data alone would mean that it would take at least a year for any significant change in performance to be detected by OFSTED.

33. It would be helpful to get clarification from Ministers if they now believe that some schools derive no benefit from inspectors’ advice or could not improve any further. This would suggest that the benefits of inspection claimed by OFSTED and others may not be as robust as suggested. It also presupposes that the "best" schools have nothing to learn from others.

Schools causing concern: powers of Secretary of State

34. Clause 43 represents a significant ratcheting up of demands placed on schools as well as of the Secretary of State’s powers. The proposals mean that there was no difference in approach between "special measures" and "notice to improve" schools, although OFSTED would have judged the latter category of school to have the leadership and management necessary to improve the school.

35. In addition, schools which were judged to have failed to comply with a local authority warning notice would also be included in this definition, although they might not be in an OFSTED category of concern and the warning notice may have been issued for one very specific aspect of provision.

36. The time schools have to comply with a valid warning notice, 15 days, is so short that the expectation currently is that "compliance may not involve full rectification of the problem, since it will not always be practical to do so within the time, but it will involve positive steps towards the solution". Under the Bill, however, schools would become eligible for closure as soon as the 15 days had elapsed – this is hardly a fair or reasonable way to conduct school improvement.

Local authorities’ financial schemes.

37. Clause 45 represents a restoration of a power previously used by the Secretary of State, for example, to require claw-back of balances defined as excessive.  Again it represents further centralisation.  The local authority scheme for financing schools represents an important tool for schools and local authorities, forming as it does the legal basis for the financial relationship between schools and their local authority.  The assumption is this power could be used in connection with the imposition of a national funding formula, and will at least be used to impose national policy on areas such as financial management, clawback of balances and procurement practices.

Further education institutions – amendments.

38. Clause 48 and schedule 11 reduces local authority involvement in planning and commissioning decisions about further education. They also transfer powers from the Young People’s Learning Agency (YPLA) to the Secretary of State.  There is increasingly well-placed scepticism about the DfE’s capacity to cope with the additional responsibilities and workload, especially when the DfE administrative budget is being slashed. Such centralised arrangements are unlikely to engage with local issues at the appropriate level of detail and expertise and may lead to additional workload for colleges in dealing with distant decision-makers.  It is hoped that Ministers will provide further clarification about how the new Education Funding Agency will differ from the YPLA in terms of its modus operandi.

Part 6 – Academies

Academy arrangements: post 16 education and alternative provision

39. Academies are an unproven model for schools. The NUT would argue that there should not be any extension of the Academy programme until a full evaluation has been carried out. The NUT is particularly concerned about alternative provision Academies (Pupil Referral Units and hospital schools etc) which educate some of society’s most vulnerable children, often with extreme special needs.

Consultation on conversion

40. Clause 54 provides that, in the case of a maintained school eligible for intervention, either the school’s governing body or the person with whom the Secretary of State proposes to enter into Academy arrangements can carry out the consultation on the question of whether the school should convert to Academy status.

41. The effect will be that a potential Academy provider may be empowered to carry out the consultation even though at this stage no Academy arrangements have been entered into with that provider. It is unlikely that an Academy provider, with a vested interest in the outcome of the consultation, can be trusted to carry out a fair and meaningful consultation on the question of Academy conversion. Such a measure by-passes the role of the governing body in relation to the school.

Academy conversions: federated schools

42. Clause 55 enables federated school to apply for an Academy order without requiring the agreement of the whole federated governing body. Federations allow schools to work together. They require trust and co-operation to work well and it is right and proper that if one school proposes to become an Academy this should not be done without discussion within the Federation of the wider effects of such a move on other schools in the Federation.

Academies, new and expanded educational institutions

43. Clause 57 amends section 9 of the Academies Act 2010. Under current arrangements the Secretary of State, when considering whether to enter into Academy arrangements for an "additional school" (free school), must take account of the impact on maintained schools, Academies and FE institutions in the area where it is proposed it will be established.

44. These amendments remove the term "additional school". The new arrangements will apply when the Secretary of State is deciding whether to enter into Academy arrangements in relation to a "new educational institution" or an existing educational institution that will provide education for pupils of a wider range of ages.

45. While these additional safeguards are welcome, the NUT believes that the local authority, rather than the Secretary of State, would be best placed to consider the impact on other local schools and make the decision on whether any new school/educational institution is required.

Academies: land

46. Under clause 59 of the Bill the Secretary of State is allowed additional powers to transfer the publicly funded land of maintained schools to academies.

47. This is a form of privatisation of public assets. If further down the line evidence shows that the Academy programme is not leading to the improvement of education in England it will be difficult for a future government to reverse the policy if school land had been given away.

February 2011

[1] Para 3.48, page 50

[2] Page 10,