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Baroness Massey of Darwen: My Lords, I find myself somewhat baffled by the amendment. However, I have found the debate useful. Like the right reverend Prelate the Bishop of Blackburn, I wonder whether the amendment will achieve its intention. I also feel that it gives out a somewhat negative message.

For clarification, am I to understand that the Secretary of State would be able to draw up a list of areas in which schools cannot innovate? If so, how would that be done? Would it be proactive or reactive? This proposal sounds like an enormous, powerful centralisation. I am rather surprised that the Liberal Democrats are going along with it.

Are we to understand that there would no time-frame in terms of trying out ideas and evaluating their effectiveness? Surely that is an essential component of innovation, and one which seems to have got lost.

Baroness Walmsley: My Lords, I support the amendment. I thank the Minister for listening carefully to our debates in Committee and for giving a number of concessions addressing our concerns.

Nevertheless, the reason why we should support this amendment has been capably set out by my noble friend Lady Sharp of Guildford and by the noble Baroness, Lady Blatch. It may be helpful if I address some of the concerns raised.

The Minister may argue that the amendment would mean that 24,000 governing bodies would be free to change the law at will. She may argue that governing bodies would therefore need to be au fait with the panoply of education law. Yet, as the noble Lord, Lord McIntosh of Haringey, indicated in the debate on Clauses 10 to 12 in Committee, the Government expect governing bodies to know and understand every detail of the legislation relating both to companies and to education. The Government cannot have it both ways.

The amendment does not prevent schools seeking advice from LEAs about the innovations that they intend to make, or from other schools, or from the DfES. Indeed, the Government intend to set up an innovation unit. How novel it would be if, rather than simply acting as gatekeepers, civil servants could work in real partnership with schools, providing support and advice rather than bureaucratic control—that really would be innovative. Whether we leave the Bill in its present form, or whether we pass the amendment,

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one way or another the Secretary of State will have a say in the matter; and there will be considerable protection as regards the innovations that can be made.

The concern has been expressed that the amendment would leave open the possibility of fly-by-night or madcap schemes. But the proposed new clause has been revised to address issues of consultation and accountability. I urge noble Lords to read it carefully in that respect. Government Amendment No. 10 provides the further safeguard of annual parliamentary scrutiny. I very much welcome that particular amendment and I thank the Minister for it.

The Government have emphasised their intention that all schools will be free to innovate. However, without the amendment, some will have less opportunity to do so than others. Proper innovation means risk-taking and a leap of faith by those involved. It means trusting the schools. The sad thing is that, given all the centralist pressures that they face, many schools find it difficult to take risks. More often, it is only schools which are already successful and innovative—those whose reputation is secure—that will try out innovative projects. The Bill as it stands is unlikely to change that—which is why we want to broaden the situation.

The amendment seeks to remove the need for every school wanting to innovate to apply separately to the DfES. By making the legislative parameters transparent to schools, and by removing the need for an overly bureaucratic and expensive bidding process, the amendment will mean that more schools will have more opportunity, freedom, time and money to think seriously and creatively about raising standards. It is simply because we agree with the Government's intention to allow schools to innovate that we have added our names to the amendment.

3.45 p.m.

The Earl of Listowel: My Lords, I understand the intention behind the amendment. However, having heard the remarks of the right reverend Prelate and my noble friend Lord Dearing, I am concerned about its possible impact on vulnerable children, such as looked-after children or those with special educational needs. I should therefore appreciate some clarification from those who have tabled the amendment as regards the possible impact on these two groups.

Lord Lucas: My Lords, I wonder whether the Minister can help me to understand the implications of the proposals in the Bill as drafted by stating when she thinks that this particular part of the Bill might come into force. How many applications does she anticipate being made in an average year once the provision is up and running? How many officials is it proposed will handle the flow of proposals, and what will be the grade of the senior official? What kind of time limit or target does she envisage setting officials for turning round an application from the moment it is received to

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the moment when it is either definitively approved or rejected? It would be a great help to me to know how the Government see the system working in practice.

Baroness Darcy de Knayth: My Lords, I, too, speak from the angle of special educational needs. The Special Educational Needs Consortium has concerns about the amendment. It is pleased that there is a provision for exemption from certain provisions, and it imagines that this has to do with special educational needs. The noble Baroness, Lady Sharp, said that they were already catered for. However, we have not heard that this would be sticking to the basic legal duties that were introduced under the 1981 Act. I should like to know more about that.

I shall not bore the House with the speech that I made on 2nd May, at Cols. 845 and 846, about the linkage in the chain from assessment, statementing, etc. It is important that all these are maintained. But the consortium says that there are no eligibility criteria; therefore, any school could vary whatever duties it chose. The consortium is also worried that there are no criteria to be met in deciding what contributes to the raising of educational standards in a school—merely the opinion of the governing body. The ramifications of changes made to any of the duties of a governing body may be many and unforeseen. They may impact disproportionately on the education of children with special educational needs. The consortium says that some innovative projects might benefit only one group of pupils, and that it is possible to envisage that other projects might benefit the education of some and not of others.

The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, I begin by thanking noble Lords for their kind and warm words. I have indeed tried to address all the issues raised in this House and, where possible, to meet the needs of the House. I shall pass on to David Miliband the congratulations of the noble Baroness, Lady Blatch, and I thank her.

On the point about a broad and balanced curriculum, Clauses 74 and 75 refer to earned autonomy. Later amendments that we have tabled in order to place such a provision on the face of the Bill are in direct response to those in this House who felt that it was important to do so. We shall discuss this matter later.

I agree with the remark of the noble Baroness, Lady Sharp about, "Please, Miss, can we innovate?". It is important to recognise that we are of one mind: we all want our schools to innovate. Sometimes, it is about making sure that they know that they can and feel that they can. I accept the comments of all noble Lords that we are seeking the way forward in this regard; we are arguing about how best to achieve it. It is in that spirit that I address the amendment.

I have thought very carefully about the amendment, and I have listened very carefully to the debate. I reiterate: the debate is not about the principle of innovation; we all want to see that happen. The debate

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is about whether this particular amendment should become law. Therefore, not surprisingly, I want to focus my remarks on the legal effect of the amendment as it stands.

First, the amendment would allow every school in the country unilaterally to vary the law. If everyone can vary the law, then it is no law at all.

Secondly, the variations are not limited. Noble Lords have rightly argued that there must be protection in the legislation for children with special educational needs. They have asked us to write explicitly into the legislation the protection of a broad and balanced curriculum. We have listened, but the amendment contains no such protection. There is nothing to ensure that schools must take into account the interests of children with special educational needs. There is also nothing to ensure an independent assessment of whether others might be disadvantaged. There is a requirement to consult other schools, but there is no provision for independent assessment of that consultation. Schools would do what they believed was in the interests of their children. If that meant bringing back some kind of selection or ceasing to admit children with special educational needs, theoretically there would be nothing to stop them.

Thirdly, there is no time limit to the amendment. This is no longer about pilot projects from which we can all learn. Noble Lords will remember that when we began this discussion it was about accepting that schools have much to teach us and finding ways of ensuring that we can learn. We felt that we should allow schools to alter the law where we felt that it might be in the way of innovation, perhaps particularly for the vulnerable groups referred to by the noble Earl, Lord Listowel, but in a time-limited way. The power under our clauses would disappear after four years. There is no time limit in the amendment. It is about permanent change. I do not believe that we as legislators should give schools the power to change the law. That is not their function.

Noble Lords opposite are relying entirely on the Secretary of State to exempt certain areas of the law from exemption. That is not the best way to encourage innovation. It is also an extraordinary power. If a section of an Act is in an order made under subsection (4), then it is the law, but if it is not in such an order, any school can vary it at any time. That would effectively give a future Secretary of State the right to repeal any law by making or varying such orders.

Noble Lords from various parts of the House have pointed out that Secretaries of State change. Are they sure that every future Secretary of State would produce a list of provisions that could not be varied with which they would be comfortable? It would be possible for a future Secretary of State to introduce a process of academic selection as part of raising standards. There is a legitimate argument and debate, which we have had in your Lordships' House and which I have had in many other places, about the role of academic selection in raising standards for all children. It would be possible for the Secretary of State

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to take that view under this power. It would simply be a case of allowing schools to be exempt from that part of legislation.

The amendment would give the Secretary of State a power more sweeping than any that this Government have proposed to exempt schools from any law, not for a pilot period, but permanently. I hope that noble Lords opposite will think carefully about this. The noble Baroness, Lady Walmsley, said that she believed that, one way or another, the Secretary of State would have a say. I shall spend a moment pointing out the differences between the two approaches. We want schools on the front line to consider whether there is anything that they can do innovatively. If, in doing so, they feel that certain legislation is in the way, they can tell us what they want to do and ask us to think about varying the law. We can give them the ability to do that for three years, plus an extension of three years. That will be monitored and evaluated. As the noble Baroness, Lady Walmsley, said, now laid before Parliament is the power that we will have. The purpose of that is to put it in the hands of schools to think of the ideas. I do not want to exempt special educational needs, because I do not believe that any noble Lord would say that the current system is perfect for children with special educational needs. I do not want to exempt looked-after children. They are the most vulnerable children whose academic standards are very low. I want them to have the opportunity to have their standards raised by an innovative approach by a school.

We will let schools come to us. We will make sure that the local education authority will write them in if consulted by the school. We will look at the proposal, evaluate it, see whether it would make sense for more schools to be part of it and then come to your Lordships' House and another place to do that.

The alternative approach is to say that schools can do what they wish, but to give a list—I do not mean that derogatorily, but I cannot think of another way of describing the process—of what they cannot touch. The right reverend prelate is right that we should err on the side of caution, but that would mean protecting all kinds of legislation and preventing schools coming forward in a way that might lead to greater focus on more vulnerable children. That is the difference between the two approaches.

The noble Lord, Lord Lucas, referred to bureaucracy. He wants to ensure that schools will not be tied up for two and a half years in a bureaucratic process. He asked some interesting questions about that. We do not expect lots of applications. I imagine that schools will come forward in small handfuls over time with individual ideas. The department is looking at the promotion of innovation more generally to address the issues that noble Lords have put forward. I cannot give exact figures, but I do not expect the numbers to be great. We do not intend them to be. This is about those schools that are able to think of innovative ideas where the law is in the way.

I expect a high grade senior official to be involved. The noble Lord may know that, even a year in, I sometimes find it difficult to get the gradings right. I

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know that the Secretary of State would want the issue to be handled at a senior level by the right number of officials, because this is very important. Part of the purpose of laying the annual report before Parliament—we have accepted the amendment of the noble Baroness, Lady Walmsley, on that—is to make sure that we give that information and that there will be a speedy turnaround, partly because we hope that, as ideas come forward and local education authorities are consulted, there will be a partnership approach. We want to work with schools from the moment they begin to think the issue through. I cannot be specific, but we will consider that we have failed totally if the issue is not given the weight that I know that the Secretary of State wants. I know that she will ensure that that is done.

I accept in principle that we are all searching for the best way to innovate. I do not say in other than a humble way that we believe that our approach is right. We recognise that noble Lords are concerned about the centralisation of power. That is why the Secretary of State is not in a position to do anything other than respond to schools. We hope that we have addressed that. We have sought to ensure that the safeguards that noble Lords have wanted are clear. This is a debate about the way forward, not about the principle. In that spirit, I hope that the noble Baroness will feel able to withdraw her amendment.

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