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Most of us by nature prefer to be left alone, to get on with things without what we might regard as time-consuming interference from elsewhere, particularly so when that involves changes in practices and procedures which we ourselves have not necessarily considered essential.
Unless a statutory instrument is implementing the details of a change in practice, procedure or policy which is universally accepted as desirable by those directly affected, it will always run the risk of being branded as unnecessary bureaucracy, difficult to understand, an additional workload burden and another reason why people have less time to do the job that they are paid for and want to do. There are always likely to be more people ready to voice criticism of the impact of statutory instruments than there are to sing their praises.
To that extent, I suspect that virtually every government department that produces any significant number of statutory instruments is on a loser when it comes to the views and perceptions of those on whom the instruments have the most impact. However, the committee’s report on the cumulative impact of statutory instruments on schools showed that, as far as the Department for Children, Schools and Families is concerned, steps could be taken to address the concerns and frustrations over the department’s approach to, and voluminous use of, statutory instruments which were expressed to us by those who gave oral and written evidence.
The Government’s response to the committee’s recommendations is helpful in that it indicates that a number of the recommendations will be implemented in varying degrees, which at least suggests that the department recognises that the issues identified by the committee have substance and weight.
As has already been said, the Government set up a panel of schools practitioners in 2003-04 called the Implementation Review Unit to offer advice on the relationship between the department and schools. Part of its remit is to review the impact of the Government’s education policy pre- and post-implementation, with a view to minimising and reducing burdens in schools. The committee took evidence from the Implementation Review Unit, and it is worth noting that it believes that what it describes as “stakeholder engagement” is better than it has ever been.
However, it and other witnesses consider that the system is overregulated and that what they feel is the focus on processes should shift towards establishing accountability for the delivery of key outcomes—in other words, rather less in regulation and guidance for schools on systems, procedures and processes that have to be followed and implemented, and rather greater emphasis on accountability for the outcomes that have to be delivered, with more flexibility for those running the schools over the means and processes
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In his evidence to the committee, the Minister referred to the light-touch regulatory framework for academies. The committee did not recommend, as has been reported in some quarters, that the same approach should be extended to all maintained schools. It certainly called for the department seriously to consider a less heavy-handed approach, since that was the thrust of much of the evidence that we heard. The committee then said, however, that if the department considered that the light-touch regulatory framework for academies was appropriate and successful, that lighter touch should be extended to all maintained schools.
It is for the department to make the judgment on whether the light-touch regulatory framework for academies is appropriate and successful. In his response to the committee’s recommendation, the Minister referred to academies and an evaluation strategy and stated that,
Such caution is perhaps understandable in the light of an article in Private Eye magazine, based on figures provided to the Library in the other place, indicating that more than two-thirds of privately sponsored academy schools have not received the money pledged to them by their sponsors.
There was not unanimity of view from those who submitted evidence over the merits of the lighter-touch regulation for academies. The Advisory Centre for Education said that the “light touch” afforded to academies often results in a deficit of accountability and a poor deal for children and parents, especially vulnerable ones. Its view was that all academies should be brought fully within the ambit of national education law in the same way as maintained schools.
The committee’s report refers to evidence we received that, to those on the receiving end, new statutory instruments, or amendments to existing instruments, seem to be introduced far too frequently, and with insufficient understanding of their impact. There is surely a need for the department to ensure that it carries out, as others have already commented, a proper post-implementation review of all statutory instruments to see whether they have achieved their objectives, whether they were necessary in the first place and what lessons can be applied to the implementation of future instruments.
Such reviews would also pick up the issue of the need for a proper assessment of the cumulative impact of statutory instruments on schools, since it appeared that this issue of the cumulative impact was not being as fully considered as it should be by the department, even though it was clearly a source of concern to many of our witnesses. Nor was it just the issue of the number of statutory instruments themselves that was raised with us, but the volume of guidance coming from the department and other education initiatives. We were told, as the noble and learned Baroness, Lady
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While some evidence we received suggested that stakeholder engagement was better than it has ever been, it was also clear that those on the front line who had to implement legislation and associated statutory instruments as well as different education initiatives felt that more could be done to involve them in policy development at an earlier stage. The department needs to look at this point, as many of the concerns and frustrations we heard might well be significantly reduced if those most affected felt that their points had been taken into account before statutory instruments were issued, guidance sent out or new initiatives embarked on. As the Advisory Centre for Education commented, if the law is set out clearly that tends to make things easier, not more difficult. The same applies to guidance and clarity over what is meant and what is expected.
I welcome the Government's response to the committee's report, which did not seek to dismiss the thrust of what the report said and provided a real expectation that specific measures will address some of the recommendations made. There will always be some differences of view on key issues of policy, but it can only be in the interests of all concerned, not least the pupils themselves, if those involved at all levels in developing and implementing policy can work together as far as possible to achieve ways in which to move forward that minimise or eliminate any potential adverse consequences or difficulties for those at the front line. I hope that the department, and in particular Ministers, since they should be the drivers of change, will reflect further on the points made in the report and on the contributions to this debate, because the present practices and procedures, and the culture that they embody, have to change.
1.02 pm
Lord Turnbull: My Lords, I am not a member of the Merits Committee, but I have two interests that are relevant to the debate, the experience of which will I hope corroborate the excellent report that the committee has produced. First, I am the chairman of the governors of an independent school, Dulwich College, and, secondly, I am chairman of the shadow board of trustees of the Isle of Sheppey academy, of which Dulwich is the lead sponsor. The trustees are responsible for planning the opening of the academy in September. It will be one of the largest and most complex academy projects in the country but also one of the most needed.
I do not have any formal connection with the maintained sector. Noble Lords might infer from the report that therefore I could have no problems, but that is not correct. Independent schools are affected by many aspects of regulation, and I fear that the committee is being excessively trusting of the claim that academies enjoy a “light-touch regulatory framework”. I thought that that notion was rather abruptly disavowed by the department’s response, when it said that funding agreements through which academies are regulated are,
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I can tell noble Lords that they really are detailed and lengthy. Before the Isle of Sheppey academy can get final sign-off to open in September, it needs to get signed off from Ofsted, and before that we will have to have approved about 50 policy statements. Because about 80 per cent of the staff are being TUPE-ed across from the predecessor schools, the academy is fully enmeshed in the national teachers pay and conditions regulations.
My starting point is that much of the corpus of regulation is essential. First and foremost, children must be protected from those who might harm them. I accept therefore the chore of securing CRB clearance. However, what I do question is that when I became involved in the second school, the question I expected was, “Are you registered, and, if so, what is your number?”, but instead I was required to make an entirely separate application; and I have ended up with two certificates for identical roles in two schools. Meanwhile, schools up and down the country are unable formally to appoint governors because there is a waiting time of several months. While accepting the case for CRB clearance, we should not administer the system in a way that discourages parents and volunteers from the community contributing to school activities.
The second area where regulation is necessary is health and safety. This was highlighted dramatically last month when the sports hall at Sheppey, which had been laid out with 150 desks for exams, had a huge air duct fall from the ceiling. Sadly one boy was seriously injured. It was only by luck that the incident was not a lot more serious as most of the ducting fell in the space between the rows of desks.
It is clear that proper risk assessments are required for activities such as school trips, but these need to be carried out with a great deal of common sense. That said, it is clear from the committee’s report that a lot of regulation is overly prescriptive, too focused on the how rather than the what, and the committee has been very successful in identifying serious flaws in the process.
The Merits Committee is renowned for the understatement of its language, so a recommendation from it that the department should “seriously consider” is, in my view, just as imperative as 245 “you musts” from the department. The committee has hit the target in arguing that for most statutory instruments there must be a common commencement date, coinciding with the start of the school year, and that notification should be given at least a term ahead. The evidence the committee has unearthed showing that July and August were the favourite months for laying statutory instruments is really quite damning.
One can ask why such an obvious principle as common commencement dates with adequate notice should not have been introduced years ago. I do not think that we should be too churlish, but rather we should welcome the clear assurances given in the response by the former Minister with responsibility for schools.
Another target hit by the committee was the tendency to produce statutory instruments on the “fire and forget” principle, and to treat pilots not as a step which
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One issue that I think could be revisited is the use of time in schools. The statutory framework requires 380 sessions of attendance each year—that is, pupils are required to attend twice a day, morning and afternoon, on a fixed 190 days across the year. Pupils are in class only about 15 per cent of the time even in the weeks that they are at school. Results have got to be achieved by integrating the use of time in the school with the use of time outside the school, even if this means rethinking this age-old framework about statutory timetables.
There are also issues relating to independent schools. The inspection process has been delegated by Ofsted to the Independent Schools Inspectorate. Dulwich College had a thorough inspection last November, which included an examination of its boarding provision. Ofsted still insists on retaining responsibility for boarding and it will make another inspection in September, which will undoubtedly duplicate much of what has already been done.
To conclude, the Merits Committee is to be congratulated on its report and on the evidence that it has unearthed. What is now needed is some stability of purpose in the department to see this through. Like the noble Baroness, Lady Deech, I think it is a pity that the former Minister with responsibility for schools, who was developing a very good reputation and who gave the pledges on behalf of the department, was caught up in the frantic game of musical chairs masquerading as a reshuffle. It is essential that the commitments given are carried through and are not elbowed aside by a new set of ministerial priorities.
Like the noble Lord, Lord Filkin, I will finish on a philosophical note. Regulation is often seen as a response to market failure, where the market or the free choice of individual players does not produce the best outcome for society. However, regulation is itself an example of market failure, because those who impose it do not bear the costs. Left to itself, it is inevitable that regulation will grow beyond its optimum point. It is therefore necessary that this corpus of regulation is periodically revisited and hacked back. I am grateful to the Merits Committee for its part in that process.
1.10 pm
Baroness Sharp of Guildford: My Lords, I join others in thanking the noble Lord, Lord Filkin, and his committee for an excellent and illuminating report. As the noble Lord said in introducing the debate, there has been a great deal of concentration on bureaucracy in the private sector and not nearly enough emphasis on the impact of bureaucracy on the public sector and its effects on public sector efficiency. This report begins to open that door and gives us pause for thought.
I declare an interest as the governor of a two-form entry primary school in Guildford. It is not a very small rural primary school, but it is a smallish school. I am also on the governing board of Guildford College of Further and Higher Education, and a member of
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I was struck by two quotations from the evidence given to the committee. First, Clarissa Williams, president of the National Association of Head Teachers, said:
“Governors, as you know, have huge responsibilities in our schools and are ultimately responsible with the head”.
I was also struck by the evidence from the National Governors Association. It struck home because in one form or another I have been a governor of schools since the 1970s. It said:
“Nor do we think it is right that the 350,000 volunteers who, as governors, provide schools with crucial support and communities with local lines of accountability for the work of their schools, put themselves at risk of penalty (albeit as a governing body rather than as individuals) for non-compliance with such an extensive and ever-growing raft of secondary legislation. Keeping governors abreast of change in schools is a major piece of work for school leaders and administrators. A major challenge facing school staff and governors is to identify what is actually required as legislation from what is offered as optional advice and guidance”.
I echo that. As a governor, you sit there and the head says, “We need to implement this piece of legislation”. As with many county councils, Surrey County Council has an advice service that tells us, and we governors get a rather formidable list of all the things that we have to do. Frequently, however, the head—or the head and the chair, or the chair of a particular committee—must translate that statutory guidance into a policy, such as a policy for behaviour or a policy for diversity. There are all kinds of policies.
That takes time. Not only do you have to get your mind around what the legislation is asking of you and what the guidance tells you that you need to do, but you must then carry that forward, develop a policy and write it down in understandable terms, which your governing board then goes through and agrees. Then it becomes the school policy on books, or whatever. That has to be reviewed every year. All these policies come back to us regularly, and we look at them. It takes a lot of time for a head teacher to do this.
I have been in this House for almost 11 years, for 10 of which I have been a Front Bench education spokesman. During that time 12 fairly major education Bills have gone through, with considerable secondary legislation attached to most of them. They were big Bills. The first Act on which I cut my teeth, so to speak, was the Learning and Skills Act 2000. We are now undoing it, doing it all up again and creating four quangos instead of one. I shall discuss later how many bits of secondary legislation seem to be coming from that.
We also had the Children Act 2004. One of the features of that Act was that we had to create plans for children. You had to bring together all the partners so that you got social services, PCTs, schools and directors of children’s trusts, which we were trying to create, sitting there making five-year and annual plans. Each plan has to be put together, which involves a great deal of top management time. We are paying directors of social services or directors of children’s trusts somewhere in the region of £100,000 to £120,000 a year—huge amounts of money. Even the head of a small primary school now earns £50,000. Heads of large secondary
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We had difficulty finding a head for my primary school. Last year the head was off for a couple of months due to stress. Why was that? I had been receiving e-mails that she put together at midnight because that was the only time she could catch up. She runs an active school with about 250 kids serving one of the more disadvantaged parts of Guildford. She is constantly “fire fighting” incidents arising in the school. The only time she gets to consider statutory requirements and to write the plans and the school’s policies is between eight o’clock at night and midnight. Therefore, it is not surprising that that causes stress or that it is difficult to recruit new head teachers, as the right reverend Prelate said.
The requirements we are discussing are a huge burden. How have they grown up? As noble Lords can tell, I have been involved in the education world for some time. In the 1950s and 1960s education was not generally centralised, but organised through local education authorities. Some were very good. The old LCC, which became the Inner London Education Authority, had a reputation for excellence, as did the North Riding of Yorkshire and some other local education authorities. However, others were not much good. It was very much a postcode lottery whether you ended up with a good authority or a bad one. Gradually through the 1960s one saw a certain amount of legislation coming in that tried to create a level playing field—in modern parlance—between local authorities. However, an area that nobody ever delved into was known as the secret garden of the curriculum. That was the domain of the class teacher. In the 1960s there were things that parents such as myself could talk to the head teacher about but you never suggested to the class teacher that they should teach something different because it was up to him or her to decide that matter. A good head would always know what class teachers did as it was the head’s responsibility to find out what was going on but there was no national curriculum. There were often guidelines from local authorities about what they expected but we did not get the national curriculum until 1989.
To my mind the turning point was the great debate on education that Callaghan instigated in 1978. He did so because it became clear that we had a superb elitist education system. At the top level we were doing quite well but down below we were just not performing. We had fewer young people going to university than our competitors and far too many of our young people were leaving school with no qualifications whatever, and far too few with intermediate level qualifications. We basically needed to up our game if we were to remain competitive in the new world opening up at that time.
With the new Government of Mrs Thatcher—now the noble Baroness, Lady Thatcher—in the 1980s, the push was for decentralisation and to get the schools off the back of the local authority. The problem so far
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When the Government started introducing specialist schools, we argued that every school should be a specialist school. Similarly, we argued that we wanted to return some freedom to the profession. It is necessary to do that. However, we have problems with academies. The noble Lord, Lord Turnbull, is right that the funding agreements are tight but commercial in confidence. We do not know them. There is not public accountability. We see education as serving communities, so schools need to co-operate with each other. That is now fashionable; we are pleased to see that. However, you need a broad strategic steer from local authorities; we see local authorities as still having a role in that sense.
We went on to the national curriculum in 1989 and it has been downhill all the way from then. The opposition Benches make much of the fact that they want to devolve responsibility down to schools, but in their next breath you hear them saying, “But you must teach phonics with synthetic phonics”. You cannot have both; you cannot devolve responsibility but lay down that you must teach phonics through synthetic phonics. There is obviously a line to be drawn there.
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