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Baroness Morris of Bolton moved Amendment No. 92:

The noble Baroness said: Amendment No. 92 is a simple probing amendment in relation to categories of schools causing concern and where special measures were required in relation to schools in Wales.

As the Bill currently stands, special measures would be required to be taken if the school was failing to give its pupils an accurate standard of education and the persons responsible for leading, managing or governing the school are not demonstrating the capacity to secure the necessary improvement.

My question is simple: why before special measures are taken is it necessary to have both categories of failure occurring at the same time, as the inclusion of the word "and" in line 2 suggests? Surely it is possible for one to occur without the other. Indeed, as it stands, one would have to wait for the other to be judged to have occurred before special measures could be
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implemented. Given the seriousness of either of these categories, action should be taken if only one occurs. I hope the Minister can provide some assurance in this regard. I beg to move.

Lord Filkin: I will do my best. It starts with a recognition of the seriousness of special measures. We have spoken about that and I shall not elaborate upon it, but clearly it is understood that they are implemented only in a situation where a school is very seriously failing.

The way in which Clause 43 defines special measures—and, therefore, the way in which it triggers intervention action—is when a school is failing to give its pupils an acceptable standard of education and the persons responsible for leading, managing and governing the school are not demonstrating a capacity to secure the necessary improvement. As the noble Baroness, Lady Morris, said, that means that both criteria would need to be met before a special measures designation would be appropriate.

This probing amendment would require a school to be made subject to special measures if only one of the two criteria was not met. That would mean that a school could be placed in special measures even though it was providing an acceptable standard of education but the leadership was not likely to secure improvement. We do not believe that would be right. Special measures are a serious matter and require radical and urgent action. They are not appropriate for a school whose performance is acceptable even though the leadership is not of the quality that would lead to the school being judged as likely to improve significantly.

In any case, the standard of education is unlikely to be acceptable if the leaders, governors and managers do not demonstrate the capacity to secure the improvements that the school needs. The two often go hand in hand. Leadership is often a factor when a school is judged to require special measures.

We believe that it is right to continue to identify the most serious cases of failure and to require action. The Bill does that. It also strengthens our drive to achieve higher and higher standards. A significant improvement category will ensure that schools with weaknesses in sixth form or other aspects of their provision are identified and receive additional support to help them. It will also put the spotlight on schools which are doing reasonably well but should be doing better. It will ensure that these schools, too, raise their performance.

Let me with some hand signals—again to the bafflement of Hansard—try to illustrate that. Under the Clause 43 definition, there could be a school which was not giving its pupils an acceptable standard of education but which could, in the judgment of Ofsted, improve with new governors coming in, a new head and some new key staff. For the sake of argument, let us say that, after a year, it may have demonstrated such leadership potential that Ofsted could be confident that that was likely to move the school out of that unacceptable standard of performance without needing the heavy hand of the full
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special measures category. I expect to have the noble Baroness, Lady Walmsley, with me on this point of the argument.

The alternative is that a school could be coasting. It could be perfectly acceptable in terms of performance but not brilliant, in which case the judgment of Ofsted might be that the head or the governors, or both, did not demonstrate the necessary ambition and seriousness required. It could be classified as an average school which did not have the push to go further. If Ofsted judged that the leadership was such that it was not going to improve the school further, it would be a case for action but it would not be a case for special measures.

That is the reason, therefore, for the differentiation that the clause, as currently drafted, allows. We believe that it is a proper differentiation. Of course it is Ofsted's judgments which trigger different actions. I hope that has been helpful.

Baroness Morris of Bolton: I thank the Minister for his reply. Sometimes the leadership is not particularly good but pupils still do quite a good job because of their wonderful teachers. As long as there is pre-emptive action to ensure that poor leadership does not permeate downwards, effectively causing the children to suffer, we are satisfied. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 93 to 95 not moved.]

Clause 43 agreed to.

Clause 44 [Cases where Secretary of State or Assembly may direct closure of school]:

On Question, Whether Clause 44 shall stand part of the Bill?

Baroness Morris of Bolton: I am here under my own flag now. Clause 44 alters the power contained in the School Standards and Framework Act 1998 for the Secretary of State or, in Wales, the Assembly to direct a local education authority to close a school that is causing concern.

At present the Secretary of State or the Assembly has such power in relation to schools that require special measures or have serious weaknesses. In future, that power will apply only to schools that are placed in special measures.

The change gives rise to a number of questions on which we would welcome the Minister's comments. We understand that the clause has been prompted by the change in the terminology and categories of schools that cause concern. My question is simple: what will happen to those schools that were categorised as "in serious weakness" and which were liable to be closed by either the Assembly or the Secretary of State? Presumably they will now be termed as "needing significant improvement" and will stay open. What will happen to the pupils in those schools?
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Perhaps the Minister can also give us the relevant information on how many schools each year were included in that category and were closed. The figure would be helpful in understanding the nature and scale of the problem that we are addressing.

Lord Filkin: The clear and simple questions are always the worst, but I shall have a go.

The clause continues the power of the Secretary of State or of the National Assembly for Wales to direct a local education authority to close the school that has been in special measures. The clause gives the Secretary of State and the Assembly such a power only in relation to the most serious category of schools which give cause for concern.

In that sense there is nothing new. The power has existed for several years. The clause largely re-enacts Section 19 of the Schools Standards and Framework Act 1998, as amended by Section 56 of the Education Act 2002.

At present, the Secretary of State and Assembly have power to direct closure of a school that is either subject to special measures or has serious weaknesses. The clause covers only those schools that require special measures. We do not believe that it would be appropriate to exercise powers in relation to other schools. The clause, therefore, does not cover schools requiring significant improvement.

We believe that the power in this clause is still needed as a preventive measure. It has never been used by the Secretary of State or the Assembly, but it may be needed as a last resort if a school is in severe difficulties and rapid improvement is unlikely. We must retain the Secretary of State's and Assembly's ability to direct closure in such circumstances, and we must retain their ability to give such direction when a school is failing children and other intervention powers have not achieved improvement in standards.

LEAs have powers under Section 29 of the School Standards and Framework Act 1998 to close schools they maintain. Those apply whether or not a school is in special measures. LEAs may choose—that is probably the central point of the good question posed by the noble Baroness—to close failing schools, taking into account the number of school places available locally and local opinion. One hundred and seventy schools in special measures were closed by LEAs since 1998.

Our policy has been that schools in special measures should be turned round or closed in two years. However, this policy is not applied inflexibly where signs of a school's recovery are evident. Where failure exists, we shall not hesitate to intervene and encourage local authorities to consider closure.

Before making a direction under the clause the Secretary of State or the Assembly must consult the LEA. In the case of foundation or voluntary schools, they must consult with the diocese or other appropriate authority and any appropriate persons. These requirements ensure that any decision on closure takes account of the position in the local area. The greatest concern must be to ensure that children receive a good
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standard of education and that they are not let down by their schools or their LEAs. If that were to happen, the Secretary of State or the Assembly must be able to step in.

I was asked how many schools had been closed by the Secretary of State or the Assembly. The power has been used and 1,200 schools have been closed by LEAs.

I hope that as a consequence of what I have said the House will agree that Clause 44 stand part.

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