Mr.
Gibb: I beg to move amendment No. 56, in schedule 2, page
117, line 42, at end
insert— ‘Right of appeal
against decisions of the
adjudicator17A (1) Where the
adjudicator makes a decision in relation to the establishment,
discontinuance or alteration of a school, the school concerned, or in
the case of the establishment of a school, the proposer, may appeal to
the Secretary of State. (2)
The Secretary of State may by regulations make provision in relation to
appeals under this section, including provision as
to— (a) the time by
which an appeal is to be
made, (b) the manner in which
an appeal is to be made, (c)
the procedure to be followed in connection with an appeal,
and (d) the matters to be taken
into account in deciding whether to allow an
appeal.'. Amendment
No. 56 would introduce a right of appeal to the Secretary of State over
decisions made by the school adjudicator. The wording used in the
amendment is lifted from the Local Government Act 2003, which was used
to establish a right of appeal against decisions by billing authorities
to vet business improvement district
proposals. The school
adjudicator was originally established by section 25 of the School
Standards and Framework Act in order to determine a range of school
organisation and admission decisions.
Jonathan
Shaw (Chatham and Aylesford) (Lab): Hear,
hear!
Mr.
Gibb: The hon. Gentleman says, “Hear, hear!”
about that provision. When we discuss school organisation committees,
we will come to a provision that the hon. Gentleman will no doubt
regret, also established under that
Act. Under current
legislation and this Bill, there is no right of appeal for such
decisions. The only recourse for aggrieved parties is the costly and
limited judicial review process. A judicial review of a decision by a
school adjudicator can cost about £50,000 or £60,000. The
Bill before us extends significantly the powers of the school
adjudicator, and we believe that natural justice requires that there be
an appeal process from those decisions. We have opted for that appeal
to be to the Secretary of State, who is, of course, accountable to
Parliament and the
electorate. There is a
concern that the school adjudicator and his regional representatives
are very much part of the education establishment, which is responsible
forthe current problems in our education system and under
which a quarter of secondary schools are underperforming. There is a
concern also that in reality they are not as independent as they were
established to be. In their seminal work for Policy Exchange:
“More Good School Places”, James O’Shaughnessy and
Charlotte Leslie wrote
that, “although the
Adjudicator is supposed to be independent, it is unfortunately not
always so, as Rose Bugler from the Lowick Primary School in Cumbria
explains”. Cumbria
education authority wanted to close the Lowick school. Rose Bugler
said: “The LEA
said to us that they had decided early on that there was no need for
any new schools in the county. End of
story.” She went on to
say: “We finally
got to the Adjudicator, who we thought would be independent. However,
the Adjudicator has to take note of what the LEA says and of course
that must be the ‘truth’. It was all tied up in political
knots.” O’Shaughnessy
and Leslie provide other examples of the adjudicator’s decision
making that demonstrate why it is crucial for there to be an appeal
process against his or her decisions. They cite the example of Brighton
and Hove Montessori school, a not-for-profit independent school. For 12
years, it had been trying to become the first state Montessori school
in the United Kingdom. In 2004, the Department for Education and Skills
approved its capital funding bid to buy land and to build a voluntary
aided school. Because it was a voluntary aided school, the school had
to find 10 per cent. of the capital. As O’Shaughnessy and Leslie
comment,
“Initially, the local
authority, Brighton and Hove City Council, supported their bid but,
despite the DFES’s enthusiasm, soon became far less
co-operative.” The
Brighton and Hove school organisation committee refused the application
for voluntary aided status on five grounds and the school appealed to
the schools adjudicator. The grounds for the objection were: the
educational standards of the proposed school; the source of the capital
funding; the fact that there were surplus places in the area; a lack of
parental demand; and the school’s unhappiness with the admission
arrangements. To counter those criticisms, the school pointed out that
surplus places cannot be used as an argument in rejecting an
application by a proposer where there is a strong case based on
parental
preference and standards. The school had a full waiting list and a
700-name petition calling for it; it had followed the advice of the
admissions team at the DFES; and its Ofsted reports were
good. The adjudicator
found against the school on the capital funding issue. The DFES
guidance prevented him from approving the bid on the condition of the
remaining funding being found. Meanwhile, the LEA’s opposition
to the school had discouraged the bank, with which the school had been
negotiating for the other 10 per cent., from approving the loan. The
bank was unwilling to go ahead without a more positive input from the
LEA. It became a vicious circle. DFES guidance states that the
presumption should be to approve a new bid. The grounds on which the
bid was contested were very dubious, and the decision of the
adjudicator was predicated on caution and maintaining the status quo.
In his conclusion to the case, the adjudicator
said: “It is
not...possible to be certain that present qualities”
— the high quality of
education provided when the school was in the independent
sector— “would
apply to the proposed school. I must if anything err on the side of
caution.” In a
statement echoing the attitude of the Deputy Prime Minister to this
Bill, he said that, with its new facilities, the new maintained
school “might prove
attractive to more local families who might indeed find places to be
available. If that were to be the case, then the anxieties expressed by
the LEA, schools local to the proposed site and other objectors would
prove to be well
founded.” The
report demonstrates the challenges faced bypromoters in
establishing new schools. Where promoters face opposition from existing
schools and the LEA, they can find it difficult to proceed. The
adjudicator in that case reinforced the erroneous objections. His
decision explicitly recognised the success and popularity of the new
school, but his comments on the impact that the school would have on
existing schools demonstrated a reluctance to challenge the position of
those schools. There
was, therefore, a case for an appeal against the decision of the
schools adjudicator even before the Bill was published. The new,
increased range of decisions to be referred to the adjudicator under
the Bill makes the case for an appeal process even more
compelling.
Sarah
Teather: I shall listen carefully
to the Minister’s arguments in response to this Conservative
amendment, but we on the Liberal Democrat Benches instinctively see the
amendment as attempting to undermine the independence of the schools
adjudicator. Our instinct is to oppose it, but we will listen carefully
to the Minister and to what the hon. Member for Bognor Regis and
Littlehampton says in
reply.
5.15
pm
Jacqui
Smith: As we have heard, the amendment would give schools
and the proposers of new schools a right of appeal to the Secretary of
State on decisions of the adjudicator. The instincts of the hon. Member
for Brent, East are right; it is a slightly surprising amendment, given
what I thought was a reasonably recurrent theme of Conservative
policy—the need to cut back on the power of Government and the
Secretary of State.
The hon. Member for Bognor Regis
and Littlehampton wrongly sees the adjudicator as being a creature of
government. He disparagingly dismissed those who carry out that
important role as being part of what he called an educational
establishment that has failed badly—a sweeping deprecation of
large numbers of hard-working people who have achieved some
considerable improvements over the past eight years.
Nevertheless,
I hope to reassure the hon. Gentleman that the eight adjudicators,
including Dr. Philip Hunter, the chief adjudicator, all had a wide and
diverseexperience of education before being appointed. That
is important when making independent decisions about complex
educational issues. Three were chief education officers, three were Her
Majesty’s inspectors of schools, one was a diocesan director of
education and one was a civil servant who now also serves as a
parliamentary commissioner. They were appointed for their ability to
act impartially, independently and objectively, taking account of the
case presented by each party, the evidence presented to support that
case and any general guidance issued by the Secretary of State.
Adjudicators areindependent of the Secretary of State, and
base their decisions on the merits of each case.
As for the merits of the case
for the amendment, I am unpersuaded. Although my right hon. Friend the
Secretary of State would always take decisions on the merits of the
cases that came before her, the possibility has to be considered that
not all holders of her office would do so. At one time, many changes to
schools came to the Secretary of State for a decision. One reason for
stopping that and devolving decision making on school organisation to
the local level was to ensure that such decisions were taken without
national political intervention.
On balance, we think it right
that local decisions should be taken locally whenever possible. That is
why, as I suggested after the 1997 election, we introduced the school
organisation committee, which we will discuss later, that will
represent local stake holders; and we are now introducing a new
framework, with the local authority as the commissioner and assurer of
education provision.
However, we appreciate that in
some circumstances there may be a local clash of interests—a
school proposed for closure by the local authority may have different
ideas, or a school may wish to expand to offer greater choice to
parents. There may be circumstances such as outlined by the hon.
Gentleman, notwithstanding the fact that he thought the adjudicator had
not made the right decision in those circumstances, where a proposer
might make a proposition that the local decision maker turned
down. In such
circumstances, we think it right that there should also be an appeal
against the decision of the local authority. That is why we have
provided the right to appeal to the adjudicator. That right of appeal
is the second stage of the process. There will already have been a
local determination, with all the consultation and consideration that
we have previously discussed in relation to other measures in the Bill.
However, there will come a time when appeals must come to an
end—a time when enough is enough. An appeal againstthe
appeal is, I would argue, unnecessary in such
circumstances. Adjudicators are independent, and their decisions are
based on the merits of the case. In extreme
circumstances, as the hon. Gentleman himself pointed out, a judicial
review of an adjudicator’s decision is possible. The system is
now, but will be even more so under the Bill, made up of an important
process of local decision making and accountability alongside an
ability to refer disputed decisions to an independent adjudicator. That
is an appropriate balance. Having a further right of appeal,
particularly one to the Secretary of State and central Government, goes
against theprovisions and direction of the Bill and the
efficient operation of school organisation at a local level. For those
reasons, I oppose the
amendment.
Mr.
Gibb: There is widespread concern outside this place about
extra powers being given to the adjudicator, particularly because there
is no right to appeal from the adjudicator. Let me pick any page of the
Bill: page 115 in schedule 2 contains paragraphs entitled “Duty
to refer to adjudicator proposals made by...relevant
authority” and “Duty to refer proposals to adjudicator in
prescribed cases”. On the next page are paragraphs entitled,
“Duty to refer proposals to adjudicator in pursuance of
direction by Secretary of State”, “Duty to refer
proposals to adjudicator where determination delayed” and
“Reference to adjudicator at request of aggrieved
person”. I have not even touched on the admissions section of
the Bill, in which the adjudicator has a large role.
There should be a right of
appeal. That is all that the amendment says, and I am surprised that
the Secretary of State cannot bring herself to insert into the Bill,
perhaps through a Government amendment, some form of right of appeal
from the adjudicator. I very much hope that the Liberals will support
us on this, because there might be problems if we do not give this
right of appeal—perhaps not in all circumstances, but certainly
in some. In light of that, I should like to press the amendment to a
Division. Question
put, That the amendment be made:—
The Committee
divided: Ayes 6, Noes
16.
Division
No.
15] Blackman-Woods,
Dr.
Roberta Smith,
Ms Angela C. (Sheffield,
Hillsborough)Question
accordingly negatived.
Amendments made: No. 122,
in schedule 2, page 118, line 14, leave out ‘or 12' and insert
‘12, 13 or
15'. No. 123, in
schedule 2, page 118, line 38, at end insert
‘but have not yet been determined by
him'. No.
124, in schedule 2, page 118, line 41, after ‘14' insert
‘and not yet
determined'. No. 125,
in schedule 2, page 118, line 42, after ‘10' insert ‘and
not yet
determined'. No. 126,
in schedule 2, page 118, line 43, leave out from ‘under' to end
of line 44 and insert ‘Schedule 7
to the Learning and Skills Act 2000 and not yet
determined'. No.
127, in schedule 2, page 119, line 9, after ‘and'
insert ‘in a case falling within
paragraph (a)'.—[Jacqui
Smith.] Schedule
2, as amended, agreed to.
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