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The Chairman of Committees: I have to advise the noble Baroness, Lady Sharp of Guildford, and others that if Amendment No. 143 is agreed to, I shall not be able to call Amendment No. 144A because of pre-emption.
Baroness Sharp of Guildford moved Amendment No. 143:
- Page 20, line 39, leave out subsection (2) and insert—
The noble Baroness said: In moving Amendment No. 143, I shall speak also to Amendments Nos. 144 to 147 and 150 to 153. This group of amendments relates to Clauses 34 and 35. Clause 34 deals with staffing of community, voluntary- controlled, community special and maintained nursery schools and Clause 35 deals with staffing of foundation, voluntary-aided and foundation special schools.
Amendments Nos. 143, 144 and 150 seek to clarify that a member of staff, teaching or otherwise, employed at a maintained school, a voluntary foundation school or a voluntary-aided school works under the direction of the head teacher and must have a contract of employment either with the LEA or in the case of the foundation and voluntary-aided schools with the governing body. The wording of the Bill as it stands merely states that there shall be a contract of employment at a school.
The subtle change in the wording from that on the face of the Bill has a significant effect. It means that any member of staff who has had a conventional relationship with a head, working, in the case of teachers, under the reasonable direction of a head within the framework of the school teachers' pay and conditions document, must be an employee of the LEA under a contract of service and must not be self-employed or employed by an employment agency. That would help to resolve any problems with employment agencies over contractual terms and pay. It is a sensible measure. For teachers it will achieve a consistent application of the pay and conditions document and resolve technical legal anomalies about the subsection's powers of direction. If nothing else, it is a good issue for debate.
The amendment does not insist that all staff working for the school must be LEA or governing body employees. That would be instantly rejected as being inconsistent with a large number of the provisions of this Bill. Rather it seeks to refer the distinction between employees and others to the question of whether the head is directing the work of a subordinate staff member or managing the engagement of a self-employed contractor or employment business contractee.
Amendment No. 150 in Clause 35 has exactly the same purpose as Amendments Nos. 143 and 144. Amendments Nos. 145, 146, 151 and 152 are submitted at the behest of the National Association of Head Teachers because they feel that these issues must be spelt out by regulation. For head teachers there is no "may" in this matter. They must run their schools and need clear guidance on these delicate issues of staffing.
Amendments Nos. 147 and 153 aim to reinstate in primary legislation the principle that the LEA should have a role in the appointment of head teachers. Primary legislation currently contains the principle that LEAs can advise governing bodies on the appointment of heads, an important role if LEAs are also to have a duty of promoting high standards of educational provision in their areas. The Bill drops that provision from primary legislation. These amendments seek to reinstate it. I beg to move.
Baroness Blatch: I rise to speak to Amendments Nos. 144A, 146A, 149, 152A, 153A and 153B. Amendment No. 144A allows LEAs to employ staff in failing schools. Amendment No. 146A explains who works at a school otherwise than under contract. It would be helpful for the noble Baroness to explain precisely who they are talking about here. If they are volunteers, why are they not referred to as such? Part-time staff work under a contract; professional people work under a contract; full-time people work under a contract. Who are the people who are employed at a school but do not work under a contract?
Amendment No. 149 would negate the need for regulations in subsection (4). Amendment No. 152A again refers to staff who work otherwise than under a contract of employment. Again, I should like to know exactly what that means. Amendments Nos. 153A and
It would be helpful to know from the noble Baroness what that means. As we have said, these provisions concern the arrangements for staffing. Staffing in those schools which are community schools and maintained schools, voluntary-controlled schools, community special schools and maintained nursery schools should be free to appoint their own staff, unless they are schools which are failing in which case it makes sense that that should come under the control of the LEA. In the case of the staffing of foundation, voluntary-aided and foundation special schools, Clause 35(2) says,
The Lord Bishop of Blackburn: I support the questions asked by the noble Baroness, Lady Blatch. I too am in some confusion as to how this relates to voluntary-aided and foundation schools. Secondly, can the noble Baroness, Lady Sharp, say whether, if we replace the word "may" with "shall" in subsection (5)(e), it will place on local education authorities powers with regard to the voluntary-aided and foundation schools? I rise to ask those questions because I do not know the answers and believe that, as presently drafted, the Bill is in some confusion about the matter.
Baroness Ashton of Upholland: The regulations and statutory guidance under Clauses 34 and 35 will enable the Secretary of State to provide detailed staffing
I shall deal with the specific amendments in their groups. I turn first to Amendments Nos. 143, 144 and 150. They refer to employment by the local education authority or governing body. The amendments would place difficult burdens on schools as they currently operate. They would place unhelpful limitations on both their existing and future scope in utilising various staffing resources from outside schools for delivering education.
In answer to the question of the noble Baroness, Lady Blatch, about who these people are, many schools currently use staff who are not employed under contracts of employment with the local education authority or the governing body of the school. If Amendments Nos. 143, 144 and 150 were introduced, schools and LEAs would be unable to make use of teachers from supply agencies or to use contracted-out support services, such as for meals or cleaning.
Equally fundamental, the amendments prevent schools innovating by bringing resources in from outside the school to improve the education provided. For example, the amendment means that staff from other schools or from further education establishments could not be shared and that innovative arrangements for delivering education, such as the use of information and communications technology (ICT), would be restricted. That would be a backward step. The Bill does not alter basic staffing positions in schools, but we want to allow schools greater flexibility to use imaginative, collaborative arrangements, including the sharing of staff where that is appropriate, in order to raise standards.
Amendments Nos. 147 and 153 concern head teachers. I hope that I can provide the reassurance for which the noble Baroness, Lady Sharp, searches. Clauses 34(5)(d) and 35(5)(e) already provide scope to include provisions in staffing regulations which confer functions on LEAs in respect of the appointment of head teachers.
We intend to include in staffing regulations the current position of local education authorities in respect of the appointment of head teachers. Those include the scope for LEAs to advise governing bodies about the appointment of head teachers and an entitlement for the LEAs to make representations to governing bodies where they consider any candidates for head teacher vacancies are unsuitable. In the case of foundation, voluntary aided and foundation special schools, the advisory role of the LEA would, as now, be subject to advisory rights being agreed with the governing bodies of each such school.
Amendments Nos. 145, 146, 151 and 152 seek to insert that the Secretary of State "shall" instead of "may" make staffing regulations. The amendments place a duty on the Secretary of State to make particular provisions on all the matters identified in Clauses 34(5) and 35(5). As to the appointment of a head teacher, we believe that we are justified in taking a detailed approach in the interests of educational standards. We shall make provision on this matter in staffing regulations with further details and guidance. However, we may want over time to move other detailed matters to guidance.
Regulations could ignore minor matters and those effectively covered in general employment and good practice. They could take a detailed approach to important school-specific matters where the general employment law does not suffice. We need an enabling provision to achieve that. That is why we believe that "may" rather than "shall" is the most appropriate drafting.
The policy statement which sets out our intentions under Clauses 34 and 35 is available in the Library of your Lordships' House. We shall in due course consult representatives of all interested parties about proposals for the final content of the regulations.
Amendment No. 144A seeks to make a radical change to the staffing arrangement for community voluntary controlled, community special and maintained nursery schools. It removes the general arrangements for staff at these schools to be employed under contracts of employment with the local education authority. As the noble Baroness has said, this provision for employment by the LEA would only come into force where such a school failed to satisfy Ofsted as to its general standard of education and school management.
Community schools already have the option of seeking to become foundation schools and so taking on the rights of employment. Most have chosen not to do so and to remain with the arrangement whereby most staff are employed under contracts with the local education authority. That is their choice. Forcing them to take on direct employment responsibilities could be potentially damaging for the stability and success of those schools.
The staffing of schools accounts for the greatest cost in the funding of schools. It is important that resources are spent wisely in accordance with good practice and with appropriate professional advice. It is important that all schools have workable and effective staffing arrangements. Suddenly applying those measures when schools fall into failure will not make much difference in the short term. It would be far better to have arrangements which help schools to avoid failing in the first place.
Good employment practice produces results over the long term. Bad or inappropriate appointments made over the years, poor management of staff and inadequate professional advice, are not matters which can be turned around quickly. Getting the matter right in the long term is more effective than hasty measures when the damage has been done. The amendment
I now turn to Amendment No. 149. For similar reasons I do not support the amendment. It leaves foundation, voluntary aided and foundation special schools to their own devices in deciding arrangements for staffing. They would be left largely unaccountable and free to carry out those responsibilities in whatever way they saw fit until they fell—if they fell—into failure, when of course it would be too late to prevent failure caused by bad staffing practices.
Those schools are state maintained. It is right that basic arrangements for good practice and receiving appropriate professional advice should apply to them. Two examples of the kind of provision that will be covered in regulations and guidance help to highlight this aspect. The selection of a head teacher is of course the most important decision that a school takes. Getting the right person and someone who will be able to work effectively with the governing body is the bedrock of any successful school. Regulations and guidance will ensure that the selection of a head is conducted in a consistent way for all schools, following appropriate advertisement and so on.
On the question of professional advice, the local education authority will have entitlement to make representations to the governing body about unsuitable applications or where there is serious concern about the performance of a serving head teacher. In addition, and as applies at present, the local education authority will be able to agree advisory rights on all teacher appointments and dismissals. It is important that all schools are subject to those arrangements to ensure that the matters are handled appropriately and consistently.
Amendments Nos. 146A and 152A deal with the question of provision and regulations for staff otherwise than under a contract of employment. The amendments prevent the Secretary of State making regulations which deal with the appointment of teachers and other staff, otherwise than under contracts of employment with the LEA or governing body as the case may be. The regulations are intended to establish safeguards to ensure that schools act consistently and with good practice. We shall be consulting on the necessary arrangements for the employment of staff otherwise than under a contract of employment. But our overarching intention is to give schools the scope to use effectively services provided in this way.
I turn to Amendments Nos. 153A and 153B—
"(2) Any teacher or other member of staff who is appointed to work under the direction of the headteacher of a school to which this section applies is to be employed by the local education authority under a contract of employment."
"Except with the consent of the authority, the governing body shall not—(a) appoint any teacher to work at the school, or (b) dismiss any teacher at the school".
"Except as provided by regulations under subsection (4), any teacher or member of staff who is appointed to work under a contract of employment at a school to which this section applies is to be employed by the governing body of the school".
Yet on page 130, Schedule 2, Part 2, it says that the arrangements for the staffing of the school—that is, foundation, voluntary-aided and foundation special schools—shall be determined by the LEA; except with the consent of the LEA the governing body shall not appoint a teacher or dismiss a teacher at the school. That seems to contradict what is being said in Clause 35. It would be helpful, first, to know who these people are who are employed in schools other than on contract; secondly, it would be helpful to have better clarification about what appear to be inconsistencies on the face of the Bill as it relates to foundation, voluntary-aided and foundation special schools and whether the Government will consider giving just a little more freedom and autonomy to schools over their staffing unless they are, through inspection or any other measure for measuring competence, not competent to do so.
4 p.m.
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