Deregulation Bill

Written evidence submitted by NASUWT (DB 03)

1. The NASUWT welcomes the opportunity to submit written evidence to the Deregulation Bill Committee.

2. Thi s briefing sets o ut the Union’s views on the issues included in the Bill that are of key interest to the NASUWT membership and draws on the experiences and views of the Union ’s teachers and school leader members .

3. The NASUWT is the largest teachers’ union in the UK .

GENERAL COMMENTS

4. The NASUWT is concerned about the impact that the Deregulation Bill could have upon the legislative and democratic framework of the United Kingdom . Key clauses have the potential to centralise enormous power in to the hands of ministers , with little regard for the checks and balances within the apparatus of the state .

5. T he scale of the Bill is enormous and there are considerable risks that less scrutiny may therefore be given to all aspects of the Bill . The NASUWT believes that the Public Bill Committee must be given adequate time to take written and oral evidence from a wide range of stakeholders and to consider fully and debate each clause of the Bill.

6. The Coalition Government claims that the Deregulation Bill will reduce needless bureaucracy for businesses but , as with much of its so - called reduction of red tape , much is predicated on privileging businesses to the detriment of workers and consumers .

7. The Coalition Government s attempts to reduce the burdens for employers in the instances cited will, in many cases, create further risks and turbulence for employees. Deregulation does not, in and of itself , indicate the reduction or removal of bureaucracy. Bureaucracy is not in itself inherently bad. Unnecessary bureaucracy is the issue to be tackled but this should be premised on the basis that regulation is not intended for its own sake. There is always a reason , and what prompted the regulation should be considered.

8. The Deregulation Bill proposes extensive and far-reaching changes without any evidential basis being provided of the need for such changes or any assessment of the impact of such changes . I n many cases , the proposals are in direct conflict with the weight of national and international evidence on good practice . Committee m embers must question rigorously why these changes are needed in this Bill at this time and assess their impact.

9. The NASUWT believes that provisions of the Bill give rise to human rights and equalities concerns and urges the Committee to insist on a comprehensive and rigorous e qualit y impa ct assessment of a ll provisions in the Bill and to ensure that the Coalition Government is able to demonstrate that the Bill provisions are full y compliant with the public sector duty under the Equality Act 2010 .

Schedules 13 and 14

10. The particular areas the NASUWT submission focuses on are those on the provision of education in Schedules 13 and 14. These two schedules include a range of measures that it is claim ed will reduce burdens on schools. No evidence has been presented to demonstrate that these measures are necessary .

11. Other aspects of the NASUWT’s submission focus on those aspects relating to education and schools or general concerns the NASUWT has with aspects of the Bill .

SPECIFIC COMMENTS

Clause 3: Apprenticeships: simplification

12. These proposals set out the framework of the new system for apprenticeships based on the Richard Review of Apprenticeships. The NASUWT had concerns about aspects of the Richard Review proposals and, also, concerns about what it is clear is the attempt by the Coalition Government to marketise qualifications.

13. The Union is also concerned about the Coalition’s view of vocational qualifications. Vocational education, at which many young people can excel, has been downgraded and rendered second class over the term of this Government as increasingly elitist education policies are pursued.

14. The Union believes that there is insufficient detail in the Bill to assess the potential impact of the proposed changes . No clear rationale has been provided as to why the proposed changes are necessary .

15. The wording as proposed in C lause 3 is unacceptabl y open-ended and poorly drafted and w ould provide the Secretary of State for Education w ith a ‘blank cheque’ to make any further changes as he sees fit without appropriate reference to Parliament .

16. The Union believes that any reform of qualifications should seem to develop a coherent qualifications offer for all 14-19 year old learners , in which the re is parity of esteem between vocation al and academic learning pathways and consistency and coherence between the curriculum and qualifications framework. Unfortunately, the Department for Education ( DfE ) proposals for reform of vocational qualifications for 16-19 year olds would fragment further the qualification system by creating a divide between different forms of vocational qualification s and their relative status in the official tables of school and college performance.

Clause 37 : Schools: reduction of burdens

17. Clause 37 removes the requirement of local authorities or governing bodies to set annual targets relating to the educational performance of pupils in schools that are maintained by local authorities.

18. Although this may appear to remove a bureaucratic burden upon schools , the reality is that there is no evidence that this would have any positive impact , as the accountability regime through national performance tables and Ofsted inspections is so high stakes for schools that this measure would have no impact . The Committee should note that the bureaucratic burdens for schools are principally related to the publication of national performance tables and the fallout from Ofsted inspection . Schools focus on creating a paper trail for Ofsted. U ntil this core issue is addressed these measures will be purely cosmetic .

19. T he NASUWT is further concerned that Clause 37 will lead to a further concentration of power in to the hands of the Secretary of State , as it will be the DfE which will be ab le to set such external targets, thus removing another aspect of local democratic accountability and further eroding the role of local authorities in education .

20. Clause 37 removes a further link between local authorities and the schools that they maintain , whilst leaving local authorities with statutory responsibility for standards . The current arrangements also have the benefit of encourag ing dialogue between local authorities and local schools in the interests of securing sustainable school improvement and in assisting schools to meet national accoun tability priorities . The is clause would result in local authorities being expected to secure high standards of education provision in their areas without being given appropriate levers to do so .

Schedule 13: Regulation of qualification requirements for teaching staff and principals

21. This section of the schedule effectively removes the requir ement for teachers in further education to have teaching qualifications. This is a further attack on the professionalism of the teaching profession following as it does the removal of the requirement for children and young people in schools to be taught b y qualified teachers.

22. The measure that is being removed was introduced to improve the standards of teaching and learning in colleges by setting national standards that all teaching staff had to meet . This measure flies in the face of substantial international evidence that demonstrates the importance of highly qualified teaching staff who understand not only their subjects but how to personalise education to meet an individual’s learning style [1] and downgrades the profession in a way that would not be seen as acceptable in any other profession.

23. The NASUWT believes that all young people are entitled to be taught by those who have a nationally recognised qualification .

24. The NASUWT opposes this proposal in the strongest terms .

Schedule 13: Control of governance of designated institutions conducted by companies

25. S chedule 13 appears to suggest that the Secretary of State can no longer direct companies forming articles of association. It is not clear why this is necessary and how , if this is implemented , the Secretary of State will be able to exercise due diligence in relation to the scrutiny of the policies and practices of such companies policies , including in respect of equality.

Schedule 14: Responsibility for discipline

26. Schedule 14 removes the requirement for governing bodies to provide a statement of written principles for the headteacher to develop a behaviour policy .

27. T he Coalition Government has not provided any evidence as to why this change is necessary. The Committee should recognise that the existence of this measure provides the basis for governing bodies to exercise fully their role in relation to securing good behaviour in schools. All governing bodies agree behaviour policies as part of their key strategic role. It would be profoundly unhelpful if that duty on the governing body were to be removed or undermined in any way.

28. Governing bodies are engage d in the development and agreement of school behaviour polic ies . It is one of the key areas in which there is evidence of positive engagement .

29. This proposed change will give headteachers more powers in relation to discipline and, in particular, remove the right of governors to scrutinise the behaviour policy , despite the fact that governing bodies would be the accountable body if problems arose from the school’s behaviour policy. For example, in the case of a behaviour policy which was found to be discriminatory, the governing body w ould be held responsible , despite having no powers to de termine the behaviour policy under question.

30. This proposed change excludes any notion of stakeholder or community engagement. In Sir Alan Steer’s report Learning Behaviours: Lessons Learned [2] he stated that ensuring that staff, pupils and parents are involved in the process [of reviewing behaviour policies] is extremely important and must be observed .  

31. Sir Alan further state s Other changes in the 2006 Act included a widening of the duty on school governing bodies to consult on the overall principles of the school behaviour policy including, crucially, a duty to invite views not only from staff and parents but from all pupils. For disciplinary policies to be effective, it is clearly important for them to be properly understood and bought into by pupils. This development in the law consolidated existing good professional practice as well as serving to strengthen the legitimate disciplinary authority of schools.   Again , this provision undermines what this report saw as crucial to the operation of effective behaviour policies.

32. The NASUWT is concerned about the impact that this could have upon pupils with protected characteristics under the Equalities Act 2010 , particularly given the high levels of exclusio ns of some of those groups. Th is proposal is a retrograde step and should be removed from the Bill.

Schedule 14: Home-school agreements

33. This section removes the need for schools to produce home-school agreements.

34. Home - school agreements were developed in order to ensure that schools worked closely with parents. In a Department for Children, Schools and Families ( DCSF ) c ommissioned report , Behaviour and the role of home-school agreements [3] , Sir Alan Steer reported that Home-school agreements have an important role in ensuring that schools and parents work together to maintain high standards. When operated well, home-school agreements inform , promote pupil-parent-school engagement and bring together other school policies into a coherent whole.

35. Wh ilst there is no evidence that home-s chool agreements have been a burden to schools, there is evidence that schools do not widely use them. However, the proposed change to remove this provision could send out a signal to schools that the building of positive parental relationships is not important. Any decisio n to remove this statutory duty should be accompanied by a clear requirement to provide guidance to schools on securing good practice in the area of building relationships with parents and communities .

Schedule 14: Determining school terms

36. Schedule 14 deregulates the decision for determining school terms to individual school governing bodies. The Coalition Government has not presented any evidence for doing this, largely b ecause none is available. There is no evidence that serious consideration has been given to the consequences of such a move on schools, pupil s, parents, school staff and local communities .

37. T he change appears to have been proposed on the basis that the current provision has simply remained as it i s, unquestioned since the pre-industrial era. In actual ity , this issue has been the subject of review on numerous occasions .

38. In the early 1980s a national working party considered in detail the various options for change and decided to maintain the status quo.

39. In 2000 the Local Government Association (LGA) established a Commission, mainly consisting of parties supporting change, to report on the issue. A R eport was published entitled The rhythms of schooling – a proposal to integrate the stages of learning, assessment and transfer with terms and holidays .

40. The NASUWT in its respons e to the LGA Commission, stated that changing the status quo had no clear educational benefit and there were far more important and pressing issues in education than disrupting the existing academic - year pattern. This agreement remains valid .

41. In June 2004 a decision was reached by local authorities to maintain the status quo and implement a standardised school year that consisted of three terms, encompassing uniform holiday dates consistent across local authorities.

42. The agreement recognised that standardised term dates and school holidays provided consistency and predictability, which benefited pupils, teachers, parents and business .

43. The following prerequisites were established in setting a uniform national pattern:

· start the school year on a Sept ember date as near as possible to 1 September;

· equalise teaching and learning blocks (roughly 2x7 and 4x6 weeks);

· establish a two-week Spring break in early April, irrespective of the incidence of the Easter bank holiday (where the break does not coincide with the bank holiday, a nationally agreed date should be implemented in order to be consistent across local authorities);

· maintain a S ummer holiday of at least six weeks , except where local authorities have historically had fewer than six but more than five weeks; and

· identify and agree annually designed holiday periods, including the S ummer holiday.

44. These factors continue to be the basis for determining school - year team dates in the vast majority of schools , including in voluntary - aided schools which have always had the freedom to vary the term dates but have chosen to adopt the standardised pattern .

45. It is clear from the basis of this evidence that the proposed change would create a potential free for all for 23,000 schools , thus creating additional problems for businesses, parents and communities.

46. The NASUWT is very concerned that the impact of this ch ange will be felt most keenly by working mothers and that this could have a consequential impact upon their ability to stay in work or upon child - care costs. It is clear that there has not been an Equality Impact Assessment to examine this possibility.

47. The DfE appears to believe that when mak ing changes to term date s , schools will consult widely and will ensure that such changes take account of local need s . There is no evidence in support of the DfE’s assumption and no guarantee that consultation would take place on a meaningful basis . It is also clear that the need to consult would increase the bureaucratic burdens on individual schools.

48. To make this change without a full consideration of the consequences, in the absence of evidence of educational benefit , is reckless and does not seem, judging from the reaction of stakeholder groups of teachers, parents, governors and councillors , to be something that any of t he groups believe was warranted. Some 77% of 1,190 parents questioned by parenting website Netmums feared planning childcare and activities would be harder if school holidays varied.

49. The DfE has attempted to suggest that a rational e for such a change is the need to observe religious holidays. This suggestion fails to recognise that there is already flexibility for schools within the system for these and schools already make use of it .

50. The NASUWT is also concerned about the economic effects of such a change , given the impact that this could have on the ability of businesses to plan effectively and the impact that this could have upon local infrastructure , such as public transport and policing.

51. The NASUWT strongly opposes this proposal and asks Committee m embers to reject this provision in the Bill.

Schedule 14: Staffing matters

52. Schedule 14 amend s the requirement that schools must have regard to statutory guidance issued by the Secretary of State relating to the appointment, discipline, suspension and dismissal of staff.

53. Whilst this approach may be consistent with the Government’s aims of giving schools greater autonomy , the Union considers that the provision of such guidance is both necessary and effective as a protection not only for the workforce but also for schools .

54. S tatutory guidance provided by the Secretary of State provides an authoritative framework to secure best and consistent practices.

55. The NASUWT considers that the provision of statutory guidance is essential . No evidence has been produced to demonstrate that statutory guidance is an unnecessary burden or unnecessarily restrictive. The burden increases in schools as they are required to develop their own guidance. Cost to the public purse increase as each school seeks its own legal advice on which to basis its guidance.

56. These changes do not better serve the needs of schools; they will do nothing to support increased autonomy and do not empower governing bodies and headteachers. Rather they will leave schools without the clear guidance that they require thus spend ing unnecessary time and money on creating their own procedures and policies from scratch.

57. The failure by a g overning b ody to properly take into account such guidance or advice could result in policies and procedures which are not fit for purpose and could then result in schools, academies and g overning b odies facing employment tribunals with all the associated time and costs for not correctly adhering to the procedures set out in the Regulations.

58. The NASUWT notes that the DfE has only recently published guidance for managing staff employment in schools on 22 August 2013. The U nion also notes that this is prefaced by the title ‘The essentials’. It states ‘ This section brings together all statutory guidance and key advice for schools. The statutory guidance reflects the current legal position and will be updated to reflect changes to legislation and government policy’ [4] .

59. The guidance itself states: ‘ The purpose of this document is to provide statutory guidance to maintained schools and local authorities on the School Staffing (England) Regulations 2009 ("the 2009 Regulations") . The document is designed to help schools ensure they have a clear understanding of their statutory responsibilities regarding staff employment matters. Where appropriate, it also gives some advice on, or pointers to, other acts and regulations relevant to the employment of staff in schools [5] .

60. T he NASUWT believes that this is necessary and helpful to schools and does not restrict them in any way and does not therefore see the need for such a change.

61. The NASUWT also notes that all witnesses at the education session of the Joint Committee on the Draft Deregulation Bill disagreed with the Coalition Government’s view that the current guidance was merely a duplication of the School Staffing Regulations and that the guidance had no value to schools.

Schedule 14: Publication of reports

62. Schedule 14 remove s the requirement for governing bodies to make available to the public copies on request and ensure that parents receive copies of section 5 inspection reports, section 48 religious inspection reports, interim assessment reports and copies of reports relating to investigation of complaints about schools to the Chief Inspector .

63. Instead the schedule proposes that parents will receive notification of the overall outcome of section 5 and section 48 reports and will be able to request schools to provide a hard copy if they have no internet access.

64. The Union understands that this new duty secures that every parent of a registered pupil at the school is informed of the overall assessment contained in the report of the quality of education provided in the school .

65. The Union questions whether this proposal is necessary, how it will reduce burdens on schools and whether it will enhance communications and relationships between schools and parents .

Clause 2: R emoval of employment tribunals’ power to make wider recommendations

66. Clause 2 repeals section 124 of the Equality Act 2010. The NASUWT believes that this is an extremely concerning development.

67. S ection 124 of the Equality Act 2010 gives e mployment t ribunals the power to make an ‘appropriate recommendation’ where there has been a contravention of the Act. ‘Appropriate recommendation’ is defined at s124(3) as ‘a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect of any matter to which the proceed ings relate on the complainant [or] on any other person’ .

68. Under equality legislation , prior to the Equality Act , a tribunal could only make recommendations to the respondent that reduced the adverse effect of the discrimination on the claimant his or herself. The change was brought in because in 2008 when a consultation carried out by the G overnment of the time highlighted the fact that 70% of employees who were involved in discrimination claims chose to leave the respondent employer. This limited the tribunal’s power to make recommendations to try and ensure the same discrimination did not arise again.

69. It was for this reason that s124(3) was included in the Act; it meant that recommendations could be made for the benefit of the wider workforce. The types of recommendations that a tribunal can make include ensuring the respondent introduces an equal opportunities policy, re-trains staff and makes public its selection criteria used for staff transfer or promotion.

70. An example of when the tribunal used this new power was the case of Stone v Ramsay Healthcare UK Operations Ltd ET/1400762/11. Here, the claimant resigned from her job after she had been the victim of pregnancy/maternity-related discrimination. Despite the claimant no longer working for the respondent, the tribunal ordered the employer to hire external consultants in order to implement a training programme on maternity for its managers and HR team, and to re draft its equal opportunities policy.

71. In this instance, the consequences of removing these powers from the tribunal would potentially be that all of the employees at the respondent company would continue to have managers who had not had appropriate training and an equal opportunities policy that was not fit for purpose.

72. Without the tribunal having the ability to make these recommendations for such changes, the status quo could have led to further incidents of discrimination towards members of staff. This would have resulted in more resignations and tribunal claims which would have had a negative impact on both the employees and the employer. It is for this reason that tribunal recommendations should not be seen as a punishment for employers but a way of improving their business.

73. The NASUWT further notes that the TUC has reported that it knows of only four cases where such recommendations have been made by tribunals, thus clearly not creating a regulatory burden.

74. The NASUWT opposes this proposal not only because it removes a power without evidence that it is a burden and becau se the power currently sends a strong signal to employers and the wider legal and human resources community, advising business that discrimination is unacceptable, and ensuring, as in the example quoted, that discriminatory practice can be corrected.

Clause 60 : Legislation no Longer of Practical Use

75. The NASUWT is extremely concerned about how the power to disapply legislation that is no longer considered of use may be used in the future. T his is a sweeping and worrying provision removing as it does necessary checks and balances provided by the Parliamentary process .

76. Parliament should make decisions about which legislation does not apply and/or which appropriate processes should operate through the courts. Ministers or civil servants should not have the power to determine this unilaterally .

Clause 61: Exercise of regulatory functions

77. Clause 61 propose s that regulators would have a duty to promote economic growth. The NASUWT concurs fully with the view of the TUC that ‘these clauses are not only unnecessary but also potentially damaging and in some cases likely to compromise the independence of some regulatory bodies, for example, the HSE and the EHRC, both of which are required under EU legislation to operate at arm’s length from Government in the exercise of some of their statutory functions’. [6]

 

78. The NASUWT believes that the Coalition Government should remove these clauses and consider other ways of encouraging regulators to exercise their statutory functions.

 

February 2014


[1] OECD (2012), Preparing Teachers and Developing School Leaders for the 21st Century: Lessons from Around the World, Paris, p11.

[2] Sir Alan Steer (2009), Learning Behaviours: Lessons Learned, DCSF, www.educationengland.org.uk/documents/pdfs/2009-steer-report-lessons-learned.pdf

[2]

[3] Sir Alan Steer (2010), ‘Behaviour and the role of home-school agreements, DCSF , http://www.educationengland.org.uk/documents/pdfs/2010-steer-behaviour-home-school.pdf .

[4] Department for Education, 2013, http://www.education.gov.uk/schools/guidanceandadvice?page=1

[4]

[5] Department for Education, 2013, http://www.education.gov.uk/schools/guidanceandadvice/g00213619/managing-staff-employment-schools

[5]

[6] TUC (2013), Draft Deregulation Bill – TUC Response.

Prepared 27th February 2014