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Education Act 2002 (Modification of Provisions) (No. 2) (England) Regulations 2002

6.22 p.m.

Baroness Blatch rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2953).

The noble Baroness said: My Lords, in moving the first Motion standing in my name, I shall speak to all the following regulations. I and my noble friends on these Benches and those to whom we spoke during the passage of the 2002 Bill feel entirely vindicated. We predicted that numerous regulations and guidance notes would be spawned by the Bill and they have. Ministers responding to concerns about the introduction of admission forums argued that it would be straightforward—merely reflect best practice—and be simple to apply. We now have nine sets of regulations, and perhaps more to come, two voluminous jargon-written codes of practice with endless cross-references to further guidance and other statutes, and the constant threat of the heavy hand of the adjudicator and/or the Secretary of State.

Many schools of all categories and other relevant interested parties are baffled about the laying of the codes of practice before Parliament which, for reasons I shall explain, we are unable to deliberate upon today. I shall deal first with consultation. A mere 25 days was given for consultation, which was wholly inadequate. The Government breached their own guidelines and code of practice on consultation when they said it should last for at least three months. Previous consultation is no substitute for what are now to be regulations couched in law. The date of 18th September is early in the term for primary and secondary schools. To invite them to respond to such a complicated set of regulations and two large documents in only 25 days is more than any school can cope with.

However, only 637 out of 20,000 were told about the process. The Campaign for State Education, which is anti-choice and anti-selection in education, was consulted. The Campaign for Real Education, which is pro-choice and for selection in education, was not consulted. The Secondary Heads Association was consulted. The National Association of Head Teachers was not consulted. The hierarchy of the

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Anglican and Catholic Churches were consulted but they did not consult their Church schools, nor did the Government. Of the only 187 written replies, 94 were from local education authorities which in turn did not consult their schools; 50 were from schools which happened to know about the process or were some of the lucky 637; 16 were from Churches and other faith organisations; 17 were from education and children organisations; and only 10 came from parents and other individuals. Consultation has been limited and has been arbitrary.

One argument used by the Minister—perhaps it will be repeated today—was an intention to cut down on bureaucracy to schools. There are two responses to that. First, when the law effects real changes to parents, children, LEAs and schools they should know about it. Secondly, a simple letter explaining the nature and import of these changes to local authorities, schools and other relevant interested parties informing them that regulations and codes had been laid—better still, that they were to be laid, thereby giving notice—and access via the website, or hard copies from the department, should have been made available.

I turn to the incompetence of the department. I called the department before Christmas, as did Dr Marks, the education researcher, and Mr Nick Seaton from the Campaign for Real Education. All of us were told by an official at the department that he could not tell us when the documents would be published and when the code would be laid. The code had been laid on 15th November.

Subsequently, we were told that these documents could have been seen on the website, but they disappeared from the website. I was telephoned by a number of schools—three on a particular day—and by the Campaign for Real Education asking me for news of the codes of practice. Eventually, I telephoned the department and spoke to three different officials that morning. They did not know when the code would be produced. Later that day, I was telephoned by an official who told me that it had been published and laid before Parliament on 15th November and that it was then too late to lay a Prayer to Annul.

The official was puzzled as to how I and others had been misled. I was offered an apology, which I accept. Nevertheless, we were misled—and not only us, but schools, too. Those points alone—the poor and patchy consultation and confusion over the introduction of the code—provide good grounds on which to take the regulations away and reconsider the matter further.

Head teachers, teachers and governors will continue to take a jaundiced view of ministerial promises to cut the level of regulation and bureaucracy. Even now, it is not possible to understand what problem the Government were seeking to resolve by introducing admission forums underpinned by copious secondary legislation, plus two volumes of codes of practice. Ministers from time to time boast about the numbers of children or percentages of pupils who receive their first preferences for choice of a school. If there is a problem—and it does not appear that there is—it is

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that there are not enough good schools and places. Clearly, when one looks at the competition for entry to the city technology colleges and grammar schools, the problem should not be resolved by this over-mighty, over-bearing and complex set of regulations and codes of practice, but by the expansion of those places, which would gain greater pupil and parental support.

Where a school is over-subscribed, playing around with the admissions system will not allow access for more pupils. The system proposed simply removes control from heads and governors and puts it into the hands of admissions forums, but more seriously, into the hands of an unelected, unaccountable, government-appointed adjudicator. Worse, there is no appeal, other than resorting to expensive judicial review to challenge any decision made by an autocratic adjudicator.

Who in the education system, especially heads and governors, has the time to interpret the convoluted legalese of these documents? Why should a third person intervene when, if an admission goes wrong, it is the school governors and the head responsible for the response. Should fault be found to lie with a third party outside the control of the school, will the costs of any litigation, appeals process and where necessary, the remedy, be met by the Government?

Local education authorities will not be obliged legally to operate the model scheme. However, it is clear from reading these documents that there is pressure to do so. I should like it made absolutely clear that they have no obligation whatever to use the model scheme.

Referring to Paragraph 52 of the annex to the code, why should any school be forced to adopt a home school agreement, if the parent is not required to sign it as a condition of access? Why should a school be forced to take a pupil whose parents are not even prepared to sign up to the way in which the school is run?

Paragraph 7(32) actually says:

    "Head teachers have no individual role in school admissions".

Head teachers have no individual role in admitting children to their school? No wonder such emasculation is affecting the recruitment and retention of head teachers.

I refer to the Explanatory Note regarding the eighth set of regulations on the list. I use the Explanatory Note because it is impossible to use the legalese of the regulations themselves. It says,

    "They [the local education authorities] are to refer their proposed schemes to the Admission Forum established for their area and to have regard to the Forum's advice or recommendations before consulting each governing body to whom a scheme is to apply".

Having regard to the advice is one thing, but the code should make it clear that that advice is not binding. The Explanatory Note goes on,

    "Authorities are also required to consult other local education authorities with a view to securing, so far as is reasonably practicable, that their respective proposed schemes are compatible with each other".

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My own local authority is bound by Norfolk, Suffolk, Lincolnshire, Hertfordshire, Bedfordshire and Essex. Are we talking about masses of consultation countrywide? In a London authority, there are schools which will have to talk with 40 local education authorities.

As regards those same regulations is Paragraph 2 of the Schedule places a duty on local education authorities,

    "in relation to dealing with and determining parents' applications for schools, and paragraphs 3 and 4 place reciprocal duties on participating governing bodies. In particular, where it appears to the authority that a child in their area may be eligible under individual admission arrangements to be offered admissions to more than one school, or is not eligible to be offered admission to any school, they are required to determine . . . what single offer the parent of that child should receive".

What happens to the legal obligation to take note of the parent's preference?

As regards the second set of regulations, and Regulation 2(5), if a school has met the conditions to earn exemption from the duty to consult, why is it necessary for the local education authority to inform the Secretary of State? The heads, the governors, the parents, the local education authority are the local people. So why do they need to tell the Secretary of State? Why must all those who would have been consulted, had there not been the exemption, have to be notified? If there is no change, what is the point of having to consult?

What on earth is a composite document? It reminds me of a trade union document, as I read this. The composite document has to be produced. They can be separate for primary and secondary. They can be produced, two or more separate ones, for different parts of an area. They have to be produced by the 1st October and made available to anyone who wants them. Who will pay for that and if there is to be no charge, then clearly the cost will fall on the local authority, so what is that cost?

Every governing body must provide specified information no later than such time before the time required for publication of the prospectus, which is 1st October. Where are the schools going to find the time in that very short period from the beginning of the Autumn term to be able to provide all the necessary information?

In the fourth statutory instrument on the list, there is a reference in Regulation 4 to,

    "the relevant school organisation".

It would be helpful to know what that relevant organisation is.

There is also further on in the Explanatory Note, a reference to,

    "the relevant committee".

It would be helpful to know what that is. Is this covered in the terms of an adjudicator? My understanding was that the adjudicator dealt with those issues that could not be dealt with by the organisational committee. It would be helpful to know what that means.

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The fifth set of regulations on the list prescribe: the manner in which an appeal is to be constituted, the duty of the admissions authority to advertise for lay members, the procedure an appeal panel is to adopt when hearing appeals, the relevant considerations which an appeal panel is to take into account, the payment of allowances to appeal panel members and arrangements to indemnify appeal panel members against expenses.

Who pays for all of that and what are the costs?

I turn to the sixth set of regulations. Regulation 6 deals with tenure of members. Regulation 7(5) says:

    "the office of chairman and vice-chairman may be held by a person who may or may not be a member of the forum".

Is that really the case?

My final detailed point is about the adjudicator. Any parent may object to the adjudicator about a school where the admissions capacity is lower than the net capacity of schools. I assume that the adjudicator makes this decision alone, that there is no appeal against that and that is an autocratic decision on the part of the adjudicator. Can a parent object to city technology colleges, city academies, specialist schools, schools of partial selection and also grammar schools?

It is worth recording the lengths to which the Government will go in their philosophical objection to selection by ability or even their perception that a school could be selecting by ability. The codes and regulations are littered with prohibitions, checks and unsubtle comments which will exert pressure on parents and schools. Those who will be affected are bright, talented and academically able young people. Those most affected will be those from poorer homes, unable to make alternative arrangements, either by paying for private education or moving house to a better catchment area.

What powers will the adjudicator have over grammar schools? What can a parent complain of and what is the limit of the adjudicator's powers over grammar schools? Delaying preferences on the preference before test requirement will disadvantage many children, again, some of them bright children from poorer homes. Does this requirement apply to CTCs, academies, partial selective schools as well as grammar schools? Why not allow all applications to selective schools, either in part or whole, to take place first, giving all parents of children a level playing field to apply? Then, following allocation to selective places, parents could state their preferences for all the other schools which would also create a level playing field. Again, the children most likely to benefit would be bright ones from poorer homes.

If Ministers are not aware of the deep disquiet among Church schools, they should be. Under present regulations, interviews form part of the admissions process; they have done so for decades. If the Anglican and Catholic hierarchies were concerned about a perception that there was a lack of objectivity—or, worse, a perception that interviews are used to breach the rules on selection—and they knew it not to be the case, they should have stood by their schools and defended them; they should not have deserted them. If

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the Church hierarchies believed that interviews should be banned, they should have convinced the governors, heads and parents of their own schools and not done a deal with the Government.

There is an excellent article by John Clare in today's Telegraph. I know that everyone wants to go to a party, and so I shall not read it out in full. It states:

    "The head teachers complain that they were neither informed nor consulted—and nor were Catholic parents or governing bodies.

    'We believe good, conscientious, Catholic parents who are trying to bring their children up in the faith in the face of enormous odds will be aghast when they realise what their bishops have done', said one Catholic head teacher . . . 'We believe that parents have a right to an interview and an opportunity to represent at interview their commitment to Catholic education and how they meet the criteria of the school'".

The article continues:

    "'Although we write to parish priests for references, our experience has shown that these references alone are frequently not reliable', he said. 'Without an interview if would be more difficult for us to determine the degree of practice and commitment.

    There is a serious danger'"—

this is an important point—

    "'that the references from priests would determine which applicants would be offered places, and the admissions process would be less reliable. In many cases, parents would be relying on the reference-writing skills of their priests, and there would certainly be a significant rise in the number of appeals'".

And of course the schools would be held responsible.

Popular schools draw their pupils from a wide catchment area, particularly popular Church schools. It is true that at least one London school has to liaise with 40 local education authorities and independent schools. The way in which this system overlays those procedures is absolutely monstrous and unacceptable—but the voice of such schools was not heard in the consultation process.

It would take a genius to interpret the rules and regulations governing "class-size prejudice". The code of practice, which is meant to be an explanatory document, does not help.

I have merely scratched the surface of the points I wish to make about these regulations. I know that there is to be a party and that there are some fairly anxious noble Lords behind me, so I shall not labour the issue. But let the Minister be in no doubt that what I have said is but a fraction of what I would have said had there been more time.

Finally, I cannot do better than to quote from a letter sent to the headmaster of a former grant-maintained school. After listening to a speech made by David Bell, the head of Ofsted, the headmaster of another school said:

    "His [David Bell's] statement that schools are now more autonomous than ever before beggars belief. My experience, and I am now in my 26th year of headship in the maintained sector, is exactly the opposite: we now have less autonomy than ever. LEAs may no longer have the whip-hand but central government certainly does. The system is now tightly controlled by a system of regulation so complex, overbearing and labyrinthine that to call it Byzantine would be a serious understatement".

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Those are not my words. As a Member of the Opposition, the House would expect me to say something like that, but those are the words of the headmaster of an exceptionally good school who feels absolutely outraged by what the Government are doing in these regulations and codes of practice. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the regulations laid before the House on 2nd December 2002 be annulled [SI 2002/2953].—(Baroness Blatch.)

6.45 p.m.

Baroness Sharp of Guildford: My Lords, we on these Benches share the unease of the noble Baroness, Lady Blatch, at the peremptory consultation procedure in regard to the codes of practice that underlie these regulations. The time allowed for consultation was totally inadequate and the time of year at which it was undertaken was most inconvenient for all heads. We cannot expect to have proper consultation on codes of practice as important as these at that time of the year and over so short a period. It was thoughtless of the department to proceed in that way. If it intends to introduce these kinds of procedures, the department should give a little more thought to the best way of consulting people. If the Government want to get codes of practice and regulations that have a reasonable chance of being implemented onto the statute book, they should carry with them those who have to implement the regulations. Nowadays we seem to place more emphasis on the whole idea of ownership, and that is an issue that the department should think about to a greater extent.

Having said that, I have read through the regulations and I believe that they implement the Act we passed last year. As the noble Baroness, Lady Blatch, said, they embody all the bureaucratic details that we predicted because of the degree to which the department is trying to micro-manage them, but, broadly speaking, the regulations derive from the changes brought about by the Act. We had lengthy discussions on those changes during the debate and we on these Benches are broadly supportive of them.

We are glad to see the more inclusive arrangements for admissions. We supported the whole concept of admissions forums, but I have one question for the Minister. I understood at the time the Bill was passed that admissions forums would relate to a local area, not necessarily to an LEA area; for example, that in Surrey we would take a group of schools within Guildford and establish an admissions forum to cover the Guildford area. This has been happening within Surrey, where we have tended to work with schools on admissions in local areas which have been broken down to provide geographical cohesion. It is quite clear that the regulations are concerned with LEA-wide admissions forums rather than in terms of breaking down areas, and I wonder whether the Minister wishes to say anything about that.

Regulation No. 2897 seems unnecessary. It relates to the publication of the information that LEAs, heads and governors are required to produce. Do we really

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need to tell LEAs that they must publish the names and addresses of schools; that heads have to publish the names and addresses of governors and so on? That seems to be teaching LEAs, heads and governing bodies to suck eggs. However, the Government have made it quite clear that they do not trust them to do these things and have decided that it is necessary to go into this kind of detail.

I am sad about that because, as I said, there are aspects of the regulations which we welcome—particularly in relation to the inclusion arrangements. We also welcome the fact that these arrangements cover simultaneously a whole range of schools—voluntary aided and voluntary controlled, foundations and CTCs. I know that the Conservatives are not happy to see this, but we are pleased with the more comprehensive regulations and, in particular, with the attention given to looked-after children and children with special needs in regard to admissions regulations.

Sadly, we accept that, ultimately, the regulations have to be detailed and bureaucratic. They fit in with the whole ethos that the Government are pushing forward. It is sad, but we on these Benches are prepared to back the Government in bringing the regulations forward.

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