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The committee will not let go of post-implementation reviews. We believe fundamentally that unless departments find out whether their legislation has any effect, it is potentially a waste of money. Therefore, we have started another inquiry to look across the piece at whether government departments are following up in order to evaluate whether they got the effects from their legislative processes that they told Parliament they would get.

Because it is a short report, I felt that this should be a short speech. I shall conclude by signalling that all of us know that our society, our country, faces the biggest fiscal challenge over the next decade that it has faced since the Second World War. It is not a short-term blip. When the economy has recovered, we will still face a fundamental fiscal deficit which will go on until 2017-18 at the very least.

I declare my interest as the chairman and founder of the 2020 Public Services Trust, which is the major commission that we have launched into these issues. To most of us this requires a debate in civil society about what the central state does, how it behaves and, for those things that the central state continues to do, how it seeks to motivate the rest of civil society to respond to what it sees as its priorities and imperatives. For many of us, that must mean that the default model should shift from a belief that the best way is to have another initiative, to legislate and to create a new instruction in regulation. The default model should be the question: how do we motivate those who have to respond to this to be powerfully motivated to achieve

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the outcome rather than to respond to the specification of a set of inputs? Noble Lords will be relieved to know that I shall pause now. I beg to move.

12.21 pm

Lord Lucas: My Lords, I start by paying tribute to our urbane and effective chairman, the noble Lord, Lord Filkin. It has been a pleasure to serve with him on the committee. The Merits Committee seems to me to involve sifting through a large quantity of material with a great deal of concentration and care. It reminds me, and perhaps other noble Lords who are parents, of an occasion when one of my children swallowed something small and valuable. The next few days were spent waiting for its arrival and looking for it with great care and concentration. It is a measure of the talent of the noble Lord, Lord Filkin, that he keeps the noses of the members of the committee, many of whom have great talent and experience of their own, in the nappy pile week after week, with great effectiveness. When he lets us lift our heads to pursue a rather wider question like this, we do so, as may be imagined, with enthusiasm. We have produced an accurate and constructive report on this occasion and I am grateful to the Government for what is, by the standards of government, a very helpful reply.

I want to echo the question asked by the noble Lord, Lord Filkin. Are statutory instruments, and all the related documents with which the Government bombard schools, the best way to get schools to do what the Government want them to do? Like the noble Lord, Lord Filkin, my answer to that question is no. Statutory instruments have their place. I cannot see how you can deal, say, with schools admissions regulations in any other way. There has to be a set of clearly defined, common, detailed rules that should be obeyed to the letter. A statutory instrument is well placed to do that. But if you go beyond a certain point in the number and frequency of statutory instruments, you get beyond the school’s capacity to deal with them. For a small school, such as a primary school, or a school which is in any measure of difficulties, that number is quite low. It is certainly way below the levels we see at the moment. So it is no surprise to me that the burden of our evidence showed that statutory instruments, guidance and all the other things that the department produces are not proving to be effective at the moment.

I am particularly supportive of our recommendation for post-implementation reviews. I am delighted that that is a direction in which the committee will point itself in the future. It is a most important discipline to bring to bear on the Civil Service. It chimes too with the recommendation that we should move towards a system of accountability for key outcomes with a system of support for schools to which they can turn when they want help in achieving those key outcomes.

It is a ministerial imperative that in their short lives in office Ministers should make a mark on the world. They have tended to define that. When the noble Lord, Lord Filkin, spoke to us as a Minister, he echoed that in saying that he wanted to get things done while he was there. Doing things has been seen in terms of producing a statutory instrument and a policy,

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and seeing it implemented and in force, which has led to a Civil Service where policy has come to be much more important than delivery. As an outcome for schools, a succession of imperatives and regulations leaves them in a state of constant turmoil. There is an alternative model. Ministers could achieve just as much in terms of personal satisfaction and press releases if they concentrated on research, pilot studies and initiatives where schools joined in voluntarily—there is a great deal of fun and joy to come out of such things—and they do not do any harm to the structure of education. There will always be a few big initiatives moving through. Educational initiatives probably have a natural timescale of about 10 years. Like the rolling presidency of the European Union, each Minister in succession will move on a peg or two the things they most care about, which seems to me to be a proper ministerial activity too.

Schools should be looking at a set of objectives that are defined on outcomes. They should have a system of looking at, say, how to teach physics better, how to improve discipline or how to deal with whatever problems they are experiencing, and they should know immediately where to turn, although that is not easy. We have tried various initiatives to spread good practice between schools. None of them has ever really taken off. We could do much better by concentrating our efforts on producing a system that really makes it easy for schools to discover how to do better. Schools should be allowed to pursue their own self-improvement in their own way and in their own time, subject only to outside accountability, which I imagine would be an extension of Ofsted or something similar.

Where schools have been allowed to do that—say, with the adoption of the International Baccalaureate—it has been done without any disruption to any school. It is a great challenge to take on the IB and it requires a lot of adjustment and training. I have never heard a school complain. It has always been a positive experience because schools have done it when they want to do it. That is not at all what has happened in the case of diplomas, which are a wonderful concept and a great direction in which to move. But the implementation has been done to ministerial timescales and not educational timescales. I hope that they will get through it and that we will see something of it at the end. But it would have been a lot better if it had been done on the system proposed by the noble Lord, Lord Filkin, rather than that of the Government.

12.29 pm

Baroness Butler-Sloss: My Lords, I should like to start by endorsing the comments made by the noble Lord, Lord Lucas, about the chairman of the Merits Committee, the noble Lord, Lord Filkin. It is for me also a huge pleasure and an instruction to be a member of the committee that he chairs. I very much agree with all the comments that have so far been made and would like to underline one or two of the points made so delicately and so ably by the noble Lord, Lord Filkin. They are worth saying again, perhaps in a slightly different way.

Members of the Merits Committee have a unique opportunity to gauge the volume of statutory instruments pouring out of government departments, and no more

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do they pour out from a government department than from this one, the DCSF. It is an extraordinary business to read them, one after another. In paragraph 4 of our report there is a striking comment about the impact on schools of this stream of statutory instruments. It is from the National Governors’ Association and it will be helpful if I quote it again. It says:

“For the professionals in schools the endless piecemeal change has become one of the main reasons given for leaving the job. It is not unruly and undisciplined children that are forcing good teachers and governors out of our schools; it is unruly and undisciplined legislation”.

The cumulative effect of the statutory instruments is becoming almost unbearable, so we were told.

I recognise, of course, the need to give directions to schools, but it became apparent from the evidence that there was a lack of co-ordination between different parts of the department; each did not know what the other was doing. I noted with interest that the noble Lord, Lord Filkin, said that if they all came on the same day they might have someone look at them to see whether they were all necessary or whether they co-ordinated the purpose of improving education in our schools.

I get the impression from the IRU—which is, for goodness’ sake, set up to advise the Government—that the Government do not listen to it as much as they should. Paragraph 8 of our report states:

“Recent research commissioned by the IRU shows that in the 2006/7 academic year the Department and its national agencies produced over 760 documents aimed at schools. The research also found that no single part of the Department was aware of the totality of what was being offered”.

There is, therefore, no overview. There is a need for much better management of statutory instruments. Otherwise it is quite obvious that they will not be as effective as they ought to be.

There is another problem in distinguishing between regulations and guidance and an understanding of what it is actually intended should be done by the schools. For example, there is great use of the words “must” and “may” and “shall” and “should”, and it is not always easy for schools to know whether what they have is guidance or obligatory regulation. There is obviously—I hope it is not widespread but I fear that it may be—a misunderstanding in some schools as to what is required of them. Bigger schools have to deploy a member of staff to deal with the volume of statutory instruments and guidance; smaller schools do not have that opportunity and there is, undoubtedly, not only misunderstanding but a lack of compliance.

Communication is a two-way relationship and a balance has to be struck between instructing schools on what they should do and a degree of flexibility in allowing them to get on with the job on the ground. It is important in communication that each side listens to the other and it is very important that the department should listen to schools and its own advisory body, the IRU. The question is whether the present system is the best way to deliver key outcomes. E-mailing is a good step forward but there is much else to be done. The department should stand back and think holistically of a better way to co-ordinate statutory instruments and guidance. Less volume might arise from that. A greater degree of flexibility should be left to schools

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and there should be less micro-management. Let schools manage at a local level the day-to-day details that have to be dealt with. If the better schools are left to get on with it, the department could crack down on the schools that are failing to perform.

In a speech he made on 5 May at Prendergast School in south London, the Prime Minister set out his vision for education. He talked about coming forward with proposals to reduce the burdens on the schools from guidance, correspondence and statutory duties, and said that the Government would stand back and allow teachers and school leaders greater freedom to innovate. There is, I fear, some scepticism as to the effect on the ground of what the Prime Minister’s welcome words will achieve. The track record is not encouraging. We need to improve the coherence of communication instead of producing more and more statutory instruments. The Government should concentrate on outcomes in a more creative partnership with schools.

12.36 pm

The Lord Bishop of Bradford: My Lords, I add my thanks to the noble Lord, Lord Filkin, for introducing the debate and also, more importantly, for the report itself. It is clear, succinct and incisive; the same cannot always be said about the instruments which are being discussed. Indeed, Oxford council and the diocese of Oxford run a website to help schools know what they need to know, and it brings in quite an income. If only the Department for Children, Schools and Families could be similarly discerning and similarly profitable.

Head teachers especially suffer from instrument overload. There have been 1,596 of them since 1997 and head teachers are expected to know them all. I am told anecdotally that they take up more than twice the amount of print needed to cover the entire work of Shakespeare. The National Association of Head Teachers believes that the plethora of instruments is a powerful disincentive to the recruitment of head teachers. A national professional qualification for head teachers has now been introduced to raise standards, but I wonder whether it puts people off. I am told that 50 per cent of those who successfully complete the course fail to apply for headships. I should be grateful if the Minister could enlighten us and give us more detailed information on that matter.

I was speaking to a stand-in head a few weeks ago—she was one of those inspiring people who you think is the right person in the right place—and I asked her whether she was applying for the vacant headship. She said, “No. I have done the NPQH but I would not enjoy being a head teacher. I would much rather stay where I am”.

Rural schools have particular difficulties in finding heads. A 50 per cent teaching load is common for heads in rural schools but they still have to know the same regulations as the heads of larger schools. They still have to cope with all the administrative detail. This has led in north Yorkshire and Lancashire and three areas in my diocese to schools exploring the idea of appointing head teachers who will cover not one but two or even three schools which are perhaps five

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miles apart. The local communities are desperate that there should be a head in such schools because when the school closes, it is the death knell for that community. The present system of acceptance on to the training course for would-be heads means that few teachers who are committed to rural schools can get on to the scheme. The few who complete the NPQH are therefore not seeking small-school experience and are not then offering themselves. It is a desperate situation.

The instruments are also a disincentive for would-be governors, who regard them as overbearing bureaucracy. Those with professional backgrounds can cope; they can help the head teacher implement the various regulations. In our inner cities and outer estates, however, the situation is different: there is an added burden on the head to get it right. Church schools are in a relatively advantageous position. Often, but not always, there is a parish priest active on the governing body, and we are able to look around our dioceses to find governors from elsewhere—people with relevant experience, expertise and interests. However, that reduces the critical local input that governors need to provide.

The noble and learned Baroness, Lady Butler-Sloss, has referred to the need for two-way communication; indeed, we had a dinner debate earlier this week on the subject of two-way communication between Parliament and the people. The department sends out pilot initiatives, but I am told by teachers that the regulations that then follow are run out unchanged before the pilot schemes have even been evaluated. At the moment, 11 consultations are taking place on education and school matters, and each has a two-month to three-month response time. There are 60 such initiatives in a year. The department says that schools rarely respond but teachers say that there are too many initiatives, they are poorly advertised, they are not a priority, schools want to get on with the business of teaching and the consultations make very little difference anyway.

Some years ago I heard the late Roger Perks, head teacher of Baverstock school in Birmingham, give one of those talks that you hear every 10 years or so which you remember, and which shape you, for ever. In a private conversation afterwards about how he had turned the school around, he said, “We have only one school rule”. If only!

My experience as a school governor and, in the 1990s, a higher education college governor, was that we were encouraged to pursue vision and values first of all—to work towards creating an ethos that would shape the whole life of our educational institution. That is what we have sought to do in setting up an academy, as we heard from a previous speaker. It is important to get the values and the vision right first. Then, all the instruments that we need should be an expression of that vision and value. The noble Lord, Lord Lucas, mentioned the admissions policies. Even if we need lots of regulations to govern admissions, these, more than anything, should be an expression of the vision, the values and the ethos of the school.

The noble Lord, Lord Filkin, spoke of motivating people. I believe that most teachers, as they enter the profession, are already highly motivated. I am sure that all of us, as we look back on our own education, can remember at least one teacher who opened a

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window on a new world for us, who valued us and who entered imaginatively into our minds. We could even be here today because of that teacher. Those teachers, and others like them, did not teach by numbers.

12.45 pm

Baroness Deech: My Lords, the Merits of Statutory Instruments Committee is a wonderful committee on which to serve, not only because of the distinguished and incisive chairmanship of the noble Lord, Lord Filkin, but because of the range and perspective over the entire workings of Government and the impact of those rules on people. The topic of today’s debate is therefore an example of what can be learnt across the board in the following areas: the microscopic management of education, the fact that there are targets and rules rather than outcomes, the feeling that consultation is not genuine and the inaccessibility of law to those who need it.

There were over 10,000 statutory instruments referring to schools from 1987 until today found on the Government’s own website. Searching for the words “schools finance” brought up 2,560. The DCSF produced more statutory instruments than any other department in a recent 12-month period. There is an outpouring of rules without follow-up. There is unintelligibility, for those of your Lordships who have looked at statutory instruments, so that, without the accompanying guidance, schools cannot handle them. Drafting and sending out that accompanying guidance adds to the length of time taken to get the news to schools.

No consideration appears to be given to people like governors and head teachers in relation to the lead-in time, and there is a failure, which the previous speaker referred to, to use IT to join up the many into the one. There is no reason why IT should not be used to put together and streamline all the statutory instruments on one particular point. Now is perhaps not the time to mention it, but that use of IT could so readily be made available in this Chamber. If we discuss a statutory instrument, why can the wording not appear on the screens that are already installed around the Chamber, for the benefit of all of us?

Whatever can be said about the demerits of the statutory instruments applying to schools, exactly the same can be said in many other fields with which your Lordships have been concerned. Gambling and human tissue are recent examples of outpourings of apparently disjointed statutory instruments which ordinary people have to get to grips with. And just wait until this House gets going on the statutory instruments that will pour out in relation to ID cards. As I said, computing could piece them together and would help with plain language, avoiding the need to refer back to the Explanatory Memorandum to understand the instrument.

I am glad of this debate because Parliament has not paid much attention to how statutory instruments work out in practice. But the Merits Committee has had the chance to hear the groans of heads and governors, and we share their pain. The department, and all others, must carry out post-implementation reviews of statutory instruments to see whether the policy objectives were met. If not, they must stop

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pouring out more statutory instruments until that problem is resolved. The most important recommendation of the report, as others have said, was that there should be post-implementation reviews, starting with the impact assessment that accompanied the statutory instruments.

The committee was grateful to the Minister of State, the right honourable Jim Knight MP, for his constructive response to the review. But he has gone, and this is part of the trouble. The Minister is no longer in post, and the necessary follow-up to statutory instruments might get lost because the civil servants and Ministers who have been tasked with those responsibilities get transferred elsewhere and there appears to be no mechanism for picking up that responsibility within the office they have left. The then Minister made a commitment to establish a mechanism to ensure that the department monitors the impact of statutory instruments on schools; this House will wait anxiously to see whether that is done.

There are some particular problems, such as communication. There needs to be a single portal through which schools access information. Sending thousands of e-mails to the schools apparently does not work because they cannot be sorted to see which refer to new regulations. As all your Lordships will know, there is nothing more calculated to block communication than the existence of thousands of e-mails.

Another issue is the one term’s notice that needs to be given to schools. Too many broad exceptions to this were claimed in the government response. For example, teachers’ pay and conditions cannot be brought in at the same time as everything else. Another example is the schools admission appeals code, which was laid on 4 December 2008 and came into force on 10 February 2009, presumably leaving no time to train the panels and clerks involved. A uniform start date of 1 September was recommended, but, again, in the response there were too many exceptions—for example, 1 January for admissions and 1 April for financial matters. Finally, there are too many data requests to schools. Your Lordships are well acquainted, across the board, with the problems of privacy and loss surrounding data. What is the point of all those data?

Reform should start with the proposals in the report from the Merits Committee. Then there should be a move forward to a radical new approach using IT for consolidation and communication.

I cannot but reflect, as I stand in the very place where the late Lord Dahrendorf so often sat, that this House will miss his wisdom in academic matters very much. I had the privilege of serving as a fellow Head of House in Oxford across the road from his college, St Antony’s. I wish it to be remembered that he brought international sparkle to his college. He assisted in opening out the university to the international scene. From the academic point of view, he will be sorely missed.

12.53 pm

Lord Rosser: My Lords, I, too, am a member of the Merits of Statutory Instruments Committee and endorse the comments already made about its chairmanship under my noble friend Lord Filkin.

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Other noble Lords, my noble friend in particular, have given a very thorough résumé of the findings in the committee’s report and the reasons for the recommendations, as well as commenting on the Government’s response. In view of that, I should like to confine my observations to a few specific areas.

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