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The noble Lord said: I shall deal with the smaller amendments in the group first. Amendment No. 256 is a misunderstanding, and I shall not speak to it. On Amendment No. 257, I simply ask why. What are the lines that the amendment would leave out doing in the Bill? What evil are they intended to address? So far as I can see, they merely remove rights, particularly from the parents of children at independent schools, without good reason. Perhaps the Minister can increase my understanding of what is going on in the clause.
Lord Adonis: To which amendment was the noble Lord speaking?
Lord Lucas: I was speaking to AmendmentNo. 257. I tabled it merely to understand what is going on in that part of the Bill.
My other two amendments, the chief of which is Amendment No. 258, followed by AmendmentNo. 252, are to do with educational research. It has long been my feeling that we do not have the quality
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A very recent example is the Government’s by no means too early conversion to phonics, which have been an evident path to go down for some considerable time. There has been a lot of research and a lot of work, but it has taken government fiat to make it happen. In a healthy education system, that sort of realisation and improvement should be spreading and generating itself as a matter of course.
In Amendment No. 258, which mirrors the provisions under which the National Institute for Health and Clinical Excellence was set up, I suggest that we take a leaf out that book, which the Government wrote early in their career by setting up that body, and set up a body whose function is to promote research into education. We should then ensure that, where that research generates some kind of consensus, that understanding is properly promulgated throughout the educational system by means not of fiat but of recommendation, so that we get a pattern of investigation and putting into practice properly researched educational ideas. Many areas would benefit from this, not least diagnosing and treating children with special educational needs. There are all sorts of methods and means of educating and exciting people, and bringing pupils who are finding education unattractive back into the fold. There are so many ways in which research should benefit education, and so few ways in which it does. I do not criticise this Government for lack of trying—we had the beacon schools project, which was tried but failed, and we now have school improvement partners, which are making attempts in this direction—but it seems that we lack a motor at the centre of this, and the Government should take a lesson from their own good practice.
Amendment No. 252 is a small additional change in this direction. The Education Act 2002 introduced the ability of schools to innovate where the Secretary of State approved that innovation. I suggest that we loosen that a little and do not require the Secretary of State to be convinced that a particular course of action or proposal is good, but require him merely to allow it to go ahead if it is within ordinary bounds and subject to a proper evaluation of its performance. In other words, we should allow innovation and experimentation if there are useful results from it and something at the end of the day that other schools can know and understood; namely, that it has not worked or that it is a really good idea that they should pursue. There would be a proper record of how it was done, what was done and how it worked; in other words, the sort of research base you need to make progress in education.
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There are a lot of schools with good ideas and a lot of teachers who are really innovative in the way in which they approach things. Where teachers are invited to generate proper research findings, as they are frequently by, for instance, Durham University’s Institute of Education, they produce a succession of well thought-out and well documented ideas. That is the sort of process and freedom that schools should be allowed. The Secretary of State should not see himself as the gatekeeper to these things, but the person who makes sure that they are done properly. I beg to move.
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Baroness Buscombe: I shall speak to Amendments Nos. 254A and 252AA. Amendment No. 254A requires the Secretary of State to commence the earned autonomy provisions of the Education Act 2002 within 12 months of the commencement of this Bill. The powers introduced will allow highly performing schools to apply for exemption from or modification to teachers’ pay conditions and national curriculum provisions.
This amendment would make the freedom offered to schools in the Higher Standards Better Schools for All White Paper a reality by ensuring that good schools can receive additional freedoms where they have demonstrated a consistent ability to maintain high standards. At present, while the Bill will make it easier for schools to become self-governing, the freedoms that these schools have are not substantially increased. The principal route for gaining additional freedoms by governing bodies and head teachers of schools remains through what the Secretary of State has described as the,
available under chapter 1 of Part 1 of the Education Act 2002.
If the Secretary of State thinks that the process is tortuous, is it any surprise that such a tiny number of schools have taken advantage of that power? In the three years for which these powers have been available, only 178 out of approximately 26,000 schools in England and Wales have made use of them—less than 1 per cent of schools. In many cases, the powers have been used to pilot schemes that the Government wish to evaluate.
Earned autonomy was a major element of the Schools—Achieving Success White Paper of 2001-02. Chapter 5 of the paper states:
“Where schools are successful, well-led and have a record of school improvement, we want to free them from those conditions and regulatory requirements which they tell us stand in the way of yet higher standards and further innovation”.
Again, I am touching on standards which should be absolutely central to our discussions.
“We will allow schools flexibility over some elements of teachers’ pay and conditions, for example to provide even greater recruitment and retention incentives”.
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“We will set out clear criteria for deciding which schools should have this extra autonomy and as the school system improves we would expect the proportion of eligible schools to grow”.
These reforms were central to that Education Act. This was made clear during the debate at Second Reading when the then Secretary of State, now the noble Baroness, Lady Morris of Yardley, said in another place:
“We want to give the best schools even greater freedoms ... when their success shows that they can manage their own affairs, we want to give them more scope to do so. Under the Bill, successful schools will earn greater autonomy over the curriculum and teachers’ pay and conditions”.—[Official Report, Commons, 4/12/01; col. 196.]
A consultation document on earned autonomy was due to be published on 30 September 2002. However, this did not take place as planned. As far as I am aware, the consultation did not take place and the policy is now “under review”.
The then Minister was fully committed to the principle of “earned autonomy”, which was central to the 2002 Bill. Yet it has not been implemented and there has never been a formal or satisfactory explanation for the reason for not giving good schools these additional freedoms. I hope that the Minister can shed light on this delay and on whether his department has decided to U-turn on that policy. In the best case scenario, I hope that he can inform the House that that is not the case and that he can accept our amendment.
As regards Amendment No. 252AA, Clause 153 allows the Secretary of State to amend or appealall references to local education authorities and children’s services authorities in any statutory provision, replacing it with a reference to an English or Welsh local authority. Our amendment would require that any order made under this subsection be laid in draft and approved by a resolution of each House of Parliament.
We welcome the powers in the Bill to change references to the terms “local education authority” and “children’s services authority”. It is clear that the distinctions between the various types of authorities providing children’s services and education have been broken down and that to maintain these distinctions would serve no further use. However, this is a Henry VIII clause and for that reason the Delegated Powers and Regulatory Reform Committee drew particular attention to it, stating in the report:
“We are not persuaded that the scope for any amendment of substance is so limited as to justify the negative procedure for this Henry VIII power. We therefore recommend in accordance with our general presumption that Henry VIII powers should be subject to the affirmative procedure, that the affirmative procedure should apply in this case”.
The Department for Education and Skills justifies this decision in a memorandum to the report, which tries to reassure us by stating that:
“The great majority of such amendments will be straightforward amendments in the form of ‘for local education authority/children’s services authority, substitute local authority’”.
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It is clear from this that, in a minority of cases, the amendments will not be so straightforward. Indeed, the government memorandum goes on to say that in a few instances the amendments will affect the sense of a provision. This of course is inevitable. Where the law currently refers to a local education authority, simplistically replacing the phrase with “local authority” risks imposing massively expanding statutory duties or having unwanted consequences.
When the order is produced, according to the department it will need to set out in detail amendments where such a simple substitution could not occur. It would do this by, for example, setting out a list of education functions to replace references to local authorities in their capacity as local education authorities. If the hitherto novel definition of education functions is to be incorporated into English law, it is extremely important as a matter of principle that it receives parliamentary backing. This is made all the more important by the immense scope of the proposed order. The policy statement produced by the department states that over 50 non-education Acts contain references to local education authorities and that the order is expected to take two years to complete. Both of these amendments, although substantively unrelated, seek to ensure that the Government act with the courage of their own previous convictions and those of the expert opinion of the officers of your Lordships’ House.
Baroness Walmsley: I shall speak to Amendment No. 252B tabled in my name in this group, but perhaps I may say first how strongly we on these Benches agree with the objective of the noble Lord, Lord Lucas: ensuring that good quality educational research receives a wider audience and is implemented as broadly as possible. We believe that fact-based and evidence-based policies are always the best ones to pursue.
Amendment No. 252B seeks to ensure that academies are also required by regulations to, for example, act in accordance with the admissions code, serve school meals that meet the nutritional standards and be subject to similar school improvement measures as other schools. In other words, the amendment seeks to relate academy funding agreements to the relevant provisions of the Bill. Of particular concern to us are admissions, school improvement measures and nutritional standards. Perhaps I may speak briefly about each of them.
It is not possible to reach any conclusion about how the admissions, exclusions or the SEN regime will apply in a particular academy in terms of reference to general principles of educational law and the statutory framework. The first recourse will always need to be to the funding agreement, but levers for pupils and parents over that funding agreement are not as strong as the equivalent levers they would have over a maintained school. The DfES website on academies says that,
- “in all cases the admission arrangements for each academy are agreed with the Secretary of State as a condition of the funding agreement and are consistent with the code of practice on admissions and with admissions law”.
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However, as it seems that funding agreements may vary and access to them may be quite difficult for parents, this amendment would give them some reassurance that academies have to abide by the same restrictions on admissions as maintained schools.
On nutritional standards, academies are intended to replace schools in many deprived areas. The majority will have a high number of pupils entitled to free school meals. For many children, lunch is the main meal of the day, so it is important that meals served on academy school premises are nutritionally balanced. Under-nutrition, as we have heard this afternoon, can have detrimental effects on cognitive development, behaviour and concentration. Including all schools in the requirements would ensure that the food and drink provided on school premises was not subject to undue influence from a particular party such as a school sponsor who might award provision for school food to a particular company or see it as an area where costs could be cut. I understand thatthere have been examples in academies where school contracts have been awarded to companies connected to the sponsor.
Finally, on school improvement measures andlocal authority powers of intervention, in its briefing sent for an earlier day of Committee, the Local Government Association argued that:
“Children may well attend schools not maintained by the local authority, but the council is still responsible for their well-being and educational fulfilment...The Bill fails to bring Academies into the scope of a local authority’s challenge, intervention and support functions...This would mean a significant number of children in the most deprived communities will be beyond the assistance of councils”.
While many academies are improving, they are not immune to failure, as we have heard on other days in Committee. Local authorities should therefore have the power to intervene to ensure that academies are provided the necessary support if they are failing or coasting so that children's well-being and educational potential are protected.
Lord Adonis: I am glad to be able to respond positively to two sets of amendments before us. The first is Amendment No. 258 in the name of the noble Lord, Lord Lucas. It would require the Secretary of State to establish a foundation for research and excellence in education. We entirely agree with the noble Lord that evidence should have an important role in both the design and delivery of education. My department already commissions a wide range of research—indeed, a colossal range, as I see all the proposals that go through which are funded by my department. However, we are aware that in other sectors, such as health and social care, sector-wide organisations provide guidance drawn from research and other evidence. The noble Lord referred to the National Institute for Clinical Excellence and one might also cite the Social Care Institute for Excellence as an example of that.
We are considering whether some form of evidence centre in education could summarise and provide digests of research and other evidence in a form that front-line organisations and practitioners could easily absorb. That might take place in conjunction with a
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In considering an evidence centre, we need to be careful in defining its role and remit so that it can command widespread credibility. It is a matter that we have in hand, and I will report back to the noble Lord and the Committee when I can.
Amendment No. 252A tabled by the noble Baroness, Lady Buscombe, would incorporate into the Bill the recommendation of the Delegated Powers and Regulatory Reform Committee that orders under Clause 153 which amend primary legislation should be subject to the affirmative resolution procedure. I can assure the noble Baroness that we accept the recommendations of that committee and intend to table an amendment at Report in line with that recommendation. We cannot accept the noble Baroness’s amendment, unfortunately, because parliamentary control of orders and regulations are set out in Clause 167 rather than against individual clauses. But we will achieve the objective that she seeks by means of an amendment at Report.
Amendment No. 252B, tabled by the noble Baroness, Lady Walmsley, replicates AmendmentNo. 184, laid by my noble friend Lord Judd in that it would apply to academies a wealth of legislation currently applicable to maintained schools. We debated this point fully on 18 July, when I stated why I believe adequate protection is already afforded to pupils attending academies.
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I have since written in some detail to both my noble friend Lord Judd and the noble Baroness in response to the points they have made during the debate. I simply reiterate that we believe adequate protections are already afforded to pupils attending academies, including in all three of the areas to which the noble Baroness referred.
All admissions arrangements in academies must be in accordance with the admissions code of practice. There is no better guarantee of that than the fact that they must be agreed personally by the Secretary of State, including any changes made. As I said in an earlier debate, the nutritional standards will be required through the funding agreements.
As regards school improvements, I think there is a misconception as to the regulatory authority. It is not that there is not a regulatory authority in respect of academies—there is—but the regulatory authority is the Secretary of State. It is the Secretary of State who appoints school improvement partners for academies and who has the duties which, for maintained schools, are fulfilled by local authorities, as the noble Baroness described. We accept that there needs to be a regulatory authority and that it may, in certain circumstances, need to address poor performance, but that authority is the Secretary of State. As I said to the noble Baroness, Lady Scott, on a previous occasion in Committee when she raised the issue of one academy that has been failing—the Unity Academy in Middlesbrough—we have undertaken
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Amendment No. 252 in the name of the noble Lord, Lord Lucas, questions the role of the Secretary of State in judging power to innovate applications. I emphasise that we are talking about power to innovate applications which relate to the suspension of legislation in respect of schools, not any power to innovate in the much broader area beyond that which does not require any contravention of existing legislation. Of course we encourage schools to be as innovatory as they wish to be, consistent with meeting their obligations to their pupils. That is the reason why we think there is a role for the Secretary of State. It is essential to ensure that all the evidence on a proposal under the power to innovate requirements—which can have significant implications for the operation of the law—demonstrates to the Secretary of State’s satisfaction that it will contribute to raising standards and that pupils and students are not disadvantaged.
In her Amendment No. 254A, the noble Baroness, Lady Buscombe, seeks to commence provisions in the Education Act 2002 giving exemptions related to school performance on teachers’ pay and conditions and the curriculum. I frankly confess to the noble Baroness that we are thinking this through further because, since we enacted those provisions, we have significantly extended the scope for innovation within the curriculum. We have slimmed down the scope of the statutory curriculum and we are seeking to do so further, for example, with the key stage 3 review that we are currently conducting. We have also, through the recommendations of successive reports of the school teachers’ pay review body and the additional powers and responsibilities we have given to head teachers in respect of the appraisal of teachers and decisions taken about the putting of teachers on to higher pay spines, given schools greater flexibility in these areas. So, in the context of the changes we have made in respect of schools at large, we are considering whether commencing the provisions in the 2002 Act to which the noble Baroness referred would be a sensible thing to do. But we wish to keep the issue under review and we have not yet reached a definite decision on it.
Finally, in his Amendment No. 257, the noble Lord, Lord Lucas, asks what is the reason for the relevant provision in respect of the registration authority—being the Secretary of State for England and the National Assembly for Wales—having powers to institute proceedings against any person who has committed an offence relating to independent schools. My explanation, I am advised by my lawyers, is this: it is essential that the legal requirements relating to the registration of independent schools can be enforced. It is entirely appropriate that the registration authority that has responsibility for determining all aspects of an independent school’s registration should have the final authority to take action where an offence has been committed. As a condition of registration, independent schools must meet the
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