Education and Adoption Bill

Written evidence submitted by NASUWT (EAB 23)


1.1 This evidence aims to:

· provide a context for and commentary on the Education and Adoption Bill; and

· highlight particular issues and concerns about the Bill’s provisions.

Structural change to raise standards

1.2 The NASUWT believes that the education reforms of the early part of this century made a significant contribution to raising standards.

1.3 By 2010, the proportion of pupils gaining Level 4 or 5 in English had increased from 49% to 80% and in mathematics, the proportion of pupils achieving Level 4 or 5 had increased from 45% to 79% over the same period. In 1996-7 45.1% of 16 year olds achieved 5 GCSEs at grade C or above. By 2009 this figure had risen to 65.1%. A Level pass rates had risen from 87.7% to 97.55%. In addition, achievement gaps were also narrowing and more young people were staying on into further and higher education.

1.4 These achievements were the result of over a decade of unprecedented investment in education, a commitment to tackling disadvantage and inequality and a programme of workforce reform carried out in genuine partnership between education unions, national employers and the Government in the context of the shared ambition to raise standards of education to ensure that all children and young people reach their full educational potential.

1.5 By 2010 the UK was ranked 6th in the twenty highest performing countries in education across the globe and 2nd in Europe.

1.6 Successive Governments have been united in their desire to raise standards of achievement for all children and young people. Since 2010 the main Government driver for this has been structural change.

1.7 The Education and Adoption Bill has, at its core, the drive for continuing structural change to secure the academisation of the overwhelming majority of schools on the premise of raising standards.

1.8 There is clear national and international evidence that structural change is not a panacea for raising standards or narrowing the achievement gap. There is considerable variation between the countries that top the international tables for educational performance in terms of their structures for school provision.

1.9 The DfE’s comparisons of overall GCSE achievement growth in academies and maintained schools, on which it has based its assertions that academisation raises standards, fails to take effective account of generally lower prior pupil attainment levels in academies.

1.10 Independent assessments of pupil achievement across schools with comparable levels of prior pupil attainment on admission confirm that progress levels between academies and maintained schools remain similar [1] .

1.11 The National Audit Office (NAO) has confirmed that it is not possible on the basis of the available evidence to conclude, as the DfE has done, that the expansion of the academies sector has resulted in an increase in levels of pupil attainment and progress or that, of itself, academisation has contributed towards a narrowing of achievement gaps [2] .

1.12 Evidence of the variable impact of structural change is shown by the focused inspections of Multi-academy Trusts, including E-ACT, which occurred between 28 January and 7 February 2014. This inspection concluded that performance in many E-ACT academies had declined since E-ACT became a sponsor of those schools.

Tackling disadvantage and inequality

1.13 The NASUWT shares the Government’s ambition to raise standards and to tackle inequality and disadvantage. The Union believes, however, that the continuing focus on structural change and marketization, privatisation and fragmentation of our public education service is increasing inequality and disadvantage.

1.14 The NASUWT believes that if standards of achievement are to be raised for all children and young people then the focus needs to be not on structural change or what schools are called. Whether they are academies, trusts, foundation or community schools the test should be are they delivering the entitlements a public education service should be ensuring for all children and young people.

1.15 There is already clear evidence that children and young people, as a result of structural change which has provided excessive autonomy for schools, are not receiving their basic rights and entitlements such as the entitlement to:

· be taught by a qualified teacher;

· access a broad-based national curriculum;

· access to educational experiences that promote opportunity and achievement which are not based on their parents’ ability to pay;

· the removal of barriers to achievement for those with special educational needs;

· investment in education being a key government priority;

· a life and life chances which are not degraded or derailed by poverty.

1.16 The provisions in the Bill relating to education do not secure these entitlements. Indeed, the provisions will exacerbate existing problems. Public services, including education, should contribute to securing a just, democratic and inclusive society. This Bill will not contribute to these actions.

1.17 Since 2010 there has been a significant move to centralise control of the public education system with successive pieces of legislation, which move power away from democratically elected local bodies and communities to the Secretary of State. This Bill continues that process of centralisation by removing a fundamental entitlement of parents to have a say in the type of school in which their child is educated.

1.18 The NASUWT is particularly concerned that the Bill removes the right of parents to have a say in the type of school in which their child is educated and seeks to enact provisions to remove the right of individuals to make representations about Government strategies.


Clause 1

2.1 This clause enables the Secretary of State to define a new category of "coasting schools" for the purposes of intervention under the Education and Inspections Bill 2006.

2.2 The NASUWT strongly questions the need for this clause at all. The Union believes the Secretary of State already has the powers to determine the criteria on which she can intervene in schools. However, if such a clause is to be included, the NASUWT believes that a definition of coasting schools should be included on the face of the Bill to remove the opportunity for definitions to be changed easily at the discretion of the Secretary of State in regulation and with limited parliamentary scrutiny in the future.

2.3 The absence of a definition of ‘coasting’ on the face of the Bill will make this clause inconsistent with the current provisions of the Education and Inspections Act 2006, as definitions of the other categories of school eligible for intervention are provided on the face that Act.

2.4 The absence of a clear time frame or criteria for review of a ‘coasting’ school’s status also leaves a great deal of uncertainty. Regional Schools Commissioners will be tasked with deciding whether a ‘coasting’ school’s improvement plan is credible enough to save it from forced academy conversion. However, one of the eight key performance indicators for Regional Schools Commissioners relates to the percentage of academies or free schools in their region, and ‘the percentage of eligible schools issued with an academy order’. There is clear potential for a significant conflict of interest in discharging these two areas of responsibility which could supersede any determination of the basis of raising standards.

Clause 2

2.5 This clause amends the law relating to performance standards and warning notices for schools. It significantly increases the powers of the Secretary of State at the expense of local authorities and governing bodies.

2.6 The ability to hold the Secretary of State to account for the exercise of these new wide-ranging and significant powers is diminished further by the removal of the right for organisations or individuals to challenge or appeal any decision.

2.7 Parental, community and public engagement in schools is fundamental to educational improvement and their voices are silenced by the provisions of the Bill.

Clause 3

2.8 This clause represents the compromising of the entitlement of children and young people to be taught by those who are recognised and rewarded as highly skilled professionals.

2.9 The element of the warning notice was to secure workforce standards given the inextricable link between teachers’ pay and conditions and high quality education provision. Its removal takes away a key lever for Government and local authorities in maintaining standards.

Clause 4

2.10 This clause grants new powers to the Secretary of State to require action on the part of a governing body, for example to co-operate, collaborate or federate with one or more other schools and complements the clause which removes their rights to challenge or appeal.

2.11 While there is reference to the Secretary of State consulting with a limited number of stakeholders, there is:

(i) no definition of consultation;

(ii) no framework providing the mechanism and timeframe for such consultation.

2.12 This clause is a further example of centralisation of control to the Secretary of State, away from parents and local communities.

2.13 In sub-clause 4 this centralisation is reinforced by the provision to enable the Secretary of State to set the terms of any contracts and impose them schools.

Clause 5

2.14 This clause gives the power to the Secretary of State to direct local authorities regarding the nature of Interim Executive Boards including the appointments, size of the board and terms of appointment.

2.15 The NASUWT is concerned that such provisions may lead to decisions being made to appoint IEBs that have no connection with or understanding of the community served by the school.

Clause 6

2.16 This clause represents a further diminution of the role of democratically elected local councils in the provision of education for the communities they are elected to serve.

Clause 7

2.17 This clause changes the responsibility on the Secretary of State in relation to schools identified as eligible for intervention or seeking voluntary conversion to academy status. Where under the Academies Act 2010 the Secretary of State was permitted to make an Academy order under this clause they will in future be subject to a duty to make such an order. Discretion will only be retained in respect of schools identified as "coasting". No rationale has been given for why the Bill should compel the Secretary of State to act in this way.

2.18 In addition, the lack of guidance on the face of the Bill on how the Secretary of State should exercise these discretionary powers could lead to uncertainty across the system and unacceptable variation between the ways in which different cases are handled. It should be a minimum expectation that these powers should be used in a way that is transparent and consistent.

2.19 This clause seeks to apply an ideological ‘one size fits all’ approach to school improvement, regardless of local circumstances or evidence.

Clause 8

2.20 This clause relates to the issue of consultation on conversion to an academy. The Academies Act 2010 required governing bodies to consult before conversion. This requirement is removed for schools eligible for intervention and represents the removal of parents’ rights to express a view about the type of school in which they want their children educated.

2.21 Article 26(3) of the Universal Declaration of Human Rights provides that parents have a prior right to choose the kind of education that shall be given to their children. The NASUWT believes that this provision in the Bill goes against the principle of choice as espoused by the Government and the rights enshrined in the Universal Declaration of Human Rights.

Clauses 10 and 11

2.22 These clauses oblige local authorities and governing body of a school to facilitate conversion to an academy at the direction of the Secretary of State.

2.23 Its effect will be to remove from local authorities the right to represent the interests of the community they serve, will require them to hand over, without question, local public assets and will place the burden on them, currently unspecified, to facilitate conversion.

2.24 It is not clear from the Bill what ‘facilitate’ will mean in practice. While it is probably the case that this may be interpreted as ‘not seeking to block’ an academy conversion, it may mean more than this.

2.25 It is unclear whether the steps set out in Clause 11 for governing bodies and local authorities represent the totality of ‘facilitation’ or whether there are other expectations associated with this duty. In practice, without clarity in the Bill, ‘facilitation’ may be open to wide interpretation by the Secretary of State. Without clarity it could be applied in a variety of ways placing greater burdens on some local authorities, in some circumstances, than others.

2.26 Clarity is also needed on the interrelation between duty to facilitate and other legal obligations local authorities and governors have as employers, including, for example, the Transfer of Undertakings Protection of Employment (TUPE).

2.27 The majority of the remaining clauses relate to local authority adoption arrangements or are commencement or financial clauses on which the NASUWT is not commenting at this stage.


3.1 Although there is not a definition of coasting schools on the face of the Bill, the Secretary of State for Education provided a definition on the 30 June 2015. Coasting schools were determined as stated below.

"Schools eligible for intervention will be those which fall below a new ‘coasting’ level for 3 years.

In 2014 and 2015 that level will be set at 60% of pupils achieving 5 good GCSEs or an above-average proportion of pupils making acceptable progress. From 2016, the level will be set based on Progress 8 - our new accountability measure, which shows how much progress pupils in a particular school make between the end of primary school and their GCSEs.

At primary level, the definition will apply to those schools who have seen fewer than 85% of children achieving an acceptable secondary-ready standard in reading, writing and maths over the course of 3 years, and who have seen insufficient pupil progress." [3]

3.2 The NASUWT is concerned, firstly, about the lack of consultation and arbitrary nature of this definition. This places enormous power in the hands of the Secretary of State to determine which schools are eligible for intervention and, given the manner in which this definition was announced, sets a precedent which allows her/him to amend or alter the definition further without any more consultation. Up until this point, the definitions for categories of schools that required intervention were provided on the face of Bills, i.e. within primary legislation, not simply as a result of an announcement in the House of Commons.

3.3 Furthermore, the NASUWT shares concerns also expressed by academics and independent organisations about the impact of this definition upon the very school system the Secretary of State has stated she wishes to transform.

3.4 Dr Rebecca Allen and Dave Thompson, writing for the Education Data Lab, established by the Fischer Family Trust, state when examining secondary schools that ‘Schools serving more affluent communities will escape this judgement’ of coasting schools because ‘the expected progress indicator in the definition, in our view the very worst indicator routinely published about schools’ as ‘the likelihood of a pupil making expected progress depends on their prior attainment. Therefore it is not a measure of progress at all.’ [4] This is primarily because the bar is set at 60% A*-C including English and Maths.

3.5 Furthermore, the switch to Progress 8 will not improve matters, as Allen and Thompson state ‘Unfortunately this social gradient in judgements of coasting will not disappear as we switch to Progress 8’ as ‘Schools in more affluent areas will, on average, achieve higher Progress 8 scores and so will be less likely to be judged as coasting’. [5]

3.6 It is clear, therefore, that the definition as established is not about a true sense of coasting but is instead a definition related to attainment. By developing the definition of coasting in this way, the Government is highly likely to penalise schools in challenging circumstances, whilst allowing schools in more affluent areas to continue with their current practices that may have, in the overall rhetoric of this debate, been deemed to be problematic. This is clearly unfair and risks further stigmatising schools in challenging circumstances and serving disadvantaged communities, and risks a worsening of recruitment and retention within these schools.


4.1 The NASUWT believes that legislation which relates to education should demonstrably have a positive impact on raising standards.

4.2 The NASUWT believes that the continuing and potentially increasing turbulence of structural changes which the provisions of this Bill will generate will be counterproductive to raising standards.

4.3 The Bill will do nothing to secure the fundamental educational entitlements for all children and young people in all state-funded schools.

4.4 The Bill denies parents their right to have a say in the type of school in which their child is educated.

4.5 The Bill removes from parents, governors, local communities and democratically elected local bodies the right to be consulted on the significant changes the provisions of this Bill represent for local schools.

4.6 The Bill represents further significant centralisation of power to the Secretary of State and due to the lack of details on the face of the Bill and the over-reliance on regulation removes the opportunity in future for appropriate Parliamentary scrutiny of decisions which will be made effecting our public education service.

July 2015

[1] Stewart, H. (2013). ‘The academies illusion: what the data reveals.’ Local Schools Network. (30 May) (


[2] National Audit Office (NAO) (2012).Managing the expansion of the academies programme.TSO; London


[3] DfE (30 June 2015), Hundreds of ‘coasting’ schools to be transformed,

[4] Allen and Thompson (30 June 2015), Secondary schools serving affluent communities aren’t coasting,

[5] Ibid.

Prepared 14th July 2015