[Part I]Education Bill

Public Bill Committee, 11 December 2001.

Standing Committee G

Clause 1 - Purpose and Interpretation of Chapter One

Irene Adams (Labour, Paisley North)

I remind the Committee that with this we are taking the following amendments: No. 40, in page 1, line 8, leave out

'in the opinion of the Secretary of State,'.

No. 75, in page 1, line 9, after ''standards'', insert ''or childcare provision''.

No. 76, in page 1, line 9, after ''standards'', insert

''and the improvement of special educational provision''.

No. 77, in page 1, line 9, after ''standards'', insert

''and the improvement of social inclusion''.

No. 1, in page 1, line 9, after ''England'', insert

''; there shall be a presumption in favour of innovation except where the Secretary of State has reasonable grounds to prevent it''.

No. 31, in page 1, line 9, after ''England'', insert

''and promoting equality of opportunity''.

No. 78, in page 1, line 9, after ''England'', insert

''or the development of schools in their communities''.

No. 2, in page 1, line 11, after ''Wales'', insert

''; there shall be a presumption in favour of innovation except where the National Assembly for Wales has reasonable grounds to prevent it''.

No. 32 in page 1, line 11, after ''Wales'', insert

''and promoting equality of opportunity''.

No. 3 in page 1, line 12, at end insert:

''(2A)In subsection (1) 'innovation' means any change from existing practice in a particular school, educational institution or part thereof.''

Stephen O'Brien (Conservative, Eddisbury)

Just before we adjourned I mentioned the Minister's suggestion that amendment No. 3 might be a charter for lawyers. I highlighted the exchange between the hon. Member for Don Valley (Caroline Flint) and the Minister. A word such as ''innovation'' can have a panorama of meanings in the context of the Bill and the amendments.

Caroline Flint (Labour, Don Valley)

May I put to the hon. Gentleman the example of a former grant-maintained school in my constituency? The school is at the forefront of innovation, but like many successful schools that have been innovating for a long time, it

does not want to build on that and lose further support. That would happen under the hon. Gentleman's amendment because it refers to

''any change from existing practice''.

Hayfield school attained beacon status for its teacher training. His amendment would negate any bid it might make for further innovation support.

Stephen O'Brien (Conservative, Eddisbury)

That point highlights the difficulty of the word ''innovation''. I would sympathise with a school that is at the forefront of innovative practice, which would find it inappropriate and frustrating to have such an imposition placed on it. The word ''innovation'' is tried and tested, especially in company law. In the context of intellectual property, an improvement or a development would be something growing from existing practice, such as in the hon. Lady's example. An innovation is something wholly new, and would be the basis of an intellectual property application if subject to a patent.

The word ''innovation'' has a meaning in the lay world that we understand. All parties welcome innovation and best practice in schools, especially when successful. However, the word ''innovation'' demands clarification. My remarks had to be made in a stand-alone speech rather than an intervention. I am concerned about amendment No. 3 being a charter for lawyers. The boot is on the other foot, because without amendments Nos. 1, 2 and particularly 3, the potential for a charter for lawyers exists. That is partly because of existing practice in law concerning use of the word ''innovation''. Under part 1, all schools can apply and some will be disappointed, which could lead to a legal challenge. That would become a lawyers' charter. To have a cause of action before the appropriate court, judgment would have to be made about what had taken place in schools, at whose initiative, in what time period and whether it qualified as an innovation, an improvement or a development of existing practice. The hon. Lady was kind enough to highlight that in her example.

Our discussion shows that the Bill is not clear and that the amendments are needed. I fully support the work of my hon. Friends. The Minister's judgment about the amendment being the cause of a lawyers' charter cannot be supported. On the contrary, the current wording is more likely to be a lawyers' charter and, therefore, more likely to cause interruption and disappointment for those who want the Bill's aims to succeed.

Stephen Timms (Labour, East Ham)

I am delighted that you are back to look after us again this afternoon, Mrs. Adams, and I welcome you. It is becoming apparent that we may need to sit this evening. I do not know whether you will be able to continue in the Chair if we do, but I am delighted that you are here for the afternoon.

I am slightly puzzled by our discussion of the amendment, because looking through the clauses, the word ''innovation'' appears only in the title of chapter 1. The word ''innovative'' appears once, but the lengthy contribution about the word ''innovation'' may be somewhat superfluous. My hon. Friend the

Member for Don Valley made an important point, which I shall develop. Amendment No. 3 would exclude proposals that are already being implemented but which have, if I can express this tactfully, a less than certain statutory basis. In other words, some things are happening that have an unclear statutory basis, but we want to encourage them with these measures. Under the amendment, they would not be defined as a ''change from existing practice'', and no hon. Members would wish to block them. I am also advised that the amendment would rule out several proposals that might not be directly related to classroom practice, as the word ''practice'' causes some problems. I urge the Committee not to accept the amendment.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

We have had a good debate on the amendments, with contributions from hon. Members on both sides of the Committee. I will deal with them specifically so that we can make some progress.

I thought that amendment No. 74 was not contentious and that the Government would welcome it. The Opposition were talking about trying to promote as well as facilitate, and we thought that promotion was at the heart of the Government's aims. It is worth investigating what the Secretary of State for Transport, Local Government and the Regions had to say this afternoon in his statement on local government. He said:

''I want to tackle the trend towards excessive central prescription and interference, which dominated central local relations in the 1980s and 90s. We are reversing that approach. The White Paper marks a pronounced step away from centralisation. It is about increased freedoms, better incentives, and a significant reduction in the number of controls, consent requirements, plans and over-elaborate guidance which have been all too characteristic of the top-down approach to local government.''

He went on to say that that was

''based on a belief that we don't need to control everything, and a recognition that local authorities are often in the best position to respond to local needs and aspirations.''

That is in direct contradiction with what is in the Bill, and represents what we are trying to do with the amendments. Amendment No. 74 is at the heart of that. If we cannot reach an agreement with the Government to include proposals to promote innovation by schools and local authorities, we have little hope of achieving anything in the Committee and the quicker we are out of here, the better. We shall ask for a separate vote on amendment No. 74.

The hon. Member for Don Valley was right to say that amendments Nos. 75, 76, 77 and 78 are probing amendments and I apologise for not making that clear. We are trying to discover the scope for innovation. I am happy with the Minister's response and with the way in which other members of the Committee interpreted the proposals, and I shall not push the amendments to a vote.

Amendments Nos. 31 and 32 are also probing amendments about the principle of equality of opportunity. Many Liberal Democrat Members feel that it is most important to establish the principle of equality of opportunity in social legislation. However, sometimes that principle has to be moved aside in order to move pupils towards a particular status. Earlier, when we discussed grant-maintained schools, we talked about the fact that there was not equality of opportunity because some had more resources and opportunities than others. There is a feeling that the same principle is being established by this Government in respect of specialist schools. However, we shall not press those amendments to a Division.

Amendment No. 40 is the central principle of our proposals and we shall ask the Committee to divide on it. The Minister did not even attempt to clarify what the Government meant by successful schools. I hope that he will do so later because we shall return to this important principle again and again. The Secretary of State wants to control the process and act as a gatekeeper to innovations throughout the country and no hon. Member, in their heart of hearts, can accept such a situation.

The principle that all schools other than those with special measures or with serious weaknesses should have access to whatever powers are available should be enshrined in the Bill, as Conservative and Liberal Democrat Members agree. If the Secretary of State and the Minister want to encourage innovation, they should start from the principle that all can do so unless there is due cause.

I agree with the hon. Member for South Shields (Mr. Miliband), who was right to say that innovation does not have to take place simply by removing legislation; that point was well made. There is much innovation in schools, but the hon. Gentleman will accept that since 1988, innovation in many areas has been limited because of legislation. Successive Governments have seen education legislation as a top priority in changing or driving up standards, or whatever is the mantra of the day. It is important to consider other areas of legislation that could be disapplied in order to free up schools and make them more innovative. I give one example that the Secretary of State for Transport, Local Government and the Regions mentioned in his statement this afternoon of being able to borrow capital, which is often crucial if a particular school is actually to achieve something. The grant-maintained schools have that freedom because they have access to capital, although I accept that they cannot borrow it. That is what we wanted to consider in amendment No. 40.

Over the years, some amazingly innovative projects have been initiated in schools and between schools, local authorities and private sector organisations. If we really want to innovate, I hope that the amendment will be enshrined in the Bill.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Stephen Timms (Labour, East Ham)

I was hoping that clause stand part would be taken formally, but the hon. Member for Harrogate and Knaresborough (Mr. Willis) has

repeated a couple of misunderstandings with which I thought we dealt earlier, so let me correct them on the record again.

I have not explained in detail what we mean by successful schools because there is no reference to successful schools in chapter 1 of the Bill. There is a reference to the performance of schools in chapter 2, which starts with clause 5, so we shall discuss performance under that clause. In case there is any confusion, I want to make it clear that any school, successful or not, will be able to apply for the power to innovate under the clause. I thought that the hon. Gentleman implied that that was not the case.

Graham Brady (Conservative, Altrincham and Sale West)

I note the Minister's comment that any school will be able to apply under clause 1 and therefore his suggestion that innovation will be favoured. However, we must consider his words in the context of the unfortunate attitude that the Government chose to take a moment ago toward constructive amendments tabled by the official Opposition and the Liberal Democrats—amendments that would have shifted the balance in the clause to ensure that there was a presumption in favour of an innovative proposal and that would have removed the provision for the Secretary of State's wide discretion.

Most Members and most people outside the House would prefer a stronger reassurance from the Minister that there will be a presumption in favour of innovation. Even though he resisted the relevant amendment and the massed ranks of Government Members narrowly won the vote on it, he can use the Committee to stress on the record that the Government will exercise their discretion in favour of innovation whenever possible and unless there are compelling reasons not to do so. I should welcome his taking the opportunity to do so.

The Minister may feel on reflection that the wide-open approach under clause 1, with criteria yet to be fixed, is thoroughly inadequate. Again, I ask him to place on the record some meaningful indication of the criteria the Secretary of State will use when deciding whether an application should be granted. At the moment, members of the Committee and those who take an interest in our proceedings are completely in the dark as to the Government's intentions, and the Minister has done nothing to dispel that. I hope that he will take advantage of the opportunity to do so.

I have a couple of other points. My reading of the Bill is that clause 1 is not self-embracing and that it does not include provisions of the Education Bill because the aspects of education legislation that are covered by the clause are already listed in the Education Act 1996. An interested organisation outside the House would like the Minister to clarify and confirm that point. It would be a concern if the all-embracing power were to embrace the legislation that we are debating.

On the role of local education authorities, the Minister said that intervention would take place in inverse proportion to success, which implies that there will be a degree of choice. He went on to say that there would be different relationships between LEAs and different schools and types of schools. Again, he leaves a contradiction hanging in the air: apparently the LEA will have the option to intervene in proportion to the success or otherwise of the school, but he has not made it clear that that will apply to all schools. I should welcome his doing so.

On Second Reading, the Secretary of State stressed that the Government were seeking to achieve national consistency. There is an inherent contradiction between that aim and clause 1, which seeks to establish innovative solutions. How can those two aims be reconciled? The Minister was shameless in his defence of the Government's approach of taking power centrally and shifting from primary to delegated legislation. Surprisingly, he did not defend that course of action using the experience of the past four years, when there has been an annual education Act and therefore an opportunity for Ministers to ensure that the legislative provisions were up to date. Instead, he tried to justify the Government's determination to use more delegated legislation with express reference to events prior to 1997. That seems an absurd position for him to adopt.

The hon. Member for South Shields pointed out, rightly, that innovation covers a multitude of sins. That is precisely why the Committee, if it were taking its responsibilities as seriously as it should, should have agreed to put more detail on the face of the Bill and deal with some of the central contradictions. I will not divide the Committee on clause stand part, but I am disappointed. I think I speak for all Opposition Members in saying that we are disappointed that the Government have not taken the opportunity to clarify their position or put in the Bill some of the more important issues that have been debated. I am particularly disappointed that the Minister was so keen to resist the inclusion in the Bill of a presumption in favour of innovation, which leaves all hon. Members with grounds to doubt the seriousness of the Government's claim that they want to promote innovative solutions in education.

Stephen Timms (Labour, East Ham)

The hon. Gentleman has tried to reopen debates that we have effectively concluded. On his point about the Government's willingness to grant innovation, I simply refer him to the clear statements that I made this morning: the record will show that I dealt with that matter fully. His other point, which was new, was what he described as the self-referential issue in the Bill. I refer him to clause 2(1)(a), which states that the applicant would have conferred exemption from any requirement imposed by education legislation including, of course, those elements of education legislation that are in the Bill.

Question put and agreed to.

Clause 1 ordered to stand part of the debate.

Clause 2 - Power to suspend statutory requirements etc.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I beg to move amendment No. 41, in page 2, line 22, leave out ''may'', and insert ''shall''.

This simple amendment goes over some of the ground that we covered in clause 1, so I shall be as brief as possible. It puts the onus on the Secretary of State to say why schools and LEAs should not have the powers, instead of their having to satisfy rules that she might set. We have examined the legislation and the extent of disapplication and believe that the Secretary of State should simply assume that all schools and authorities should have the powers, subject to regulations that she might lay down about the disapplication of specific pieces of legislation. We fully accept that she may want to disapply all of a particular piece of legislation. Given those parameters, we believe that the principle should be that schools and authorities shall have the powers rather than that they may have them.

Stephen Timms (Labour, East Ham)

The purpose of the clause is to provide for innovative projects that would contribute to the improvement of educational standards and that, if successful, would be adopted more widely. I am a little perplexed by the hon. Gentleman's argument. In our discussion this morning, he was keen that local education authorities should be consulted as part of the process. If the LEA does not think that a particular innovation should be granted, presumably he would want the Secretary of State to have the discretion not to grant it. His amendment would require the Secretary of State to grant the innovation regardless of what the LEA or anyone else said on the subject. The amendment is contradictory to his argument this morning and I hope that the Committee will resist it.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I forget which hon. Member raised the issue this morning, but whether we like it or not, some conflicts between schools and their LEAs are inevitable. Of course, LEAs should be consultees: the Minister accepted that this morning and regulations in clauses 2 and 4 will be put into operation to ensure that they are.

All that is sought through the amendment is an assumption that dispensations should be given—whether applied for by an LEA or by a school—unless there is good reason not to give them. The Minister outlined some good reasons, for example, representations by the chief inspector. If Ofsted puts a school or local authority under special measures, that should be taken into consideration.

Stephen Timms (Labour, East Ham)

I understand the hon. Gentleman's proposal, but I put it to him that his amendment would not achieve it. It would change the legislation so that it stated that on the application of one or more qualifying bodies, the Secretary of State ''shall'' make provision conferring on the applicant exemption. In other words, it takes away from the Secretary of State the discretion to take account of representations from

the LEA or anyone else. That is clearly not what the hon. Gentleman wants and on that basis, I invite him to withdraw the amendment.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

We have made our point, and the Minister has responded. We will review the amendment. I beg to ask leave to withdraw it.

Amendment, by leave, withdrawn.

Graham Brady (Conservative, Altrincham and Sale West)

I beg to move amendment No. 4, in page 2, line 34, leave out subsection (2) and insert—

''(2)An order under this section shall be subject to review after a period not exceeding three years; and following such a review an order may be renewed or amended.''.

Irene Adams (Labour, Paisley North)

With this it will be convenient to take amendment No. 7, in page 3, line 1, leave out subsections (6) and (7).

Amendment No. 39, in page 3, line 13, at end insert—

''(9)No order shall be made under this section unless a draft of the order has been laid before, and approved by resolution of, each House of Parliament.''.

Graham Brady (Conservative, Altrincham and Sale West)

The amendments focus on the central contradiction of the Government's approach. The Government claim that it is their intention not only to allow and facilitate, but to promote innovation. The Minister says that the amendment tabled by the hon. Member for Harrogate and Knaresborough was otiose, because it is self-evident that the Government want to promote innovation. In response to earlier debates, the Minister has gone to some length to reassure us that the Secretary of State wants to grant schemes of innovation wherever practicable, that it will be open to all schools—regardless of success—to apply, and that they will be treated equally according to the merits of the case. Underlying that is the Government's ambition set out in the White Paper, ''Schools achieving success'', and a whole body of comment from Ministers stating that innovation and diversity are central to the task of improving school standards.

However, clause 2(2) makes an odd restriction on the powers in clause 1. We divided the Committee on an attempt to strengthen the powers in clause 1, so hon. Members will be aware that the Opposition broadly support innovation and want a far stronger presumption in favour of innovation than the Minister is prepared to accept. I believe that my credentials are sound when I point to subsection (2), which states,

''An order under this section shall have effect during a period specified in the order which, subject to section 3(2), must not exceed three years''.

If innovation is good, to be promoted and central to the Government's mission to raise standards in maintained schools—the Opposition hope that it is all those things; it certainly has our strong support—why does clause 2(2) limit its application to a period not exceeding three years? It does not make sense. If innovation is such a good thing, I shall be interested to hear the Minister's explanation of why the Government believe that it would be wrong to have too much of a good thing.

Amendment No. 7 deals with the same central contradiction. Subsections (6) and (7) ensure that there can be no amending or revoking order made by virtue of clause 3,

''after the end of a period of four years''.

It defines a commencement date, following which the four-year period will start.

The Bill claims that innovation is important and right, yet there are important and significant restrictions: first, on the timetable for which that innovation can be allowed; and, secondly, on the period from implementation of the Bill during which the exemptions can be either applied or extended for a further period of three years. My amendments would give some backbone to the Government's stated intentions, because they would delete the restriction of innovation to a period not exceeding three years. Amendment No. 4 would require a review after a period not exceeding three years, instead of the exemption terminating at the end of the three-year period. As I said, I know that the Secretary of State and the Minister are people of good faith and are trying to do good things for our schools. Although I do not necessarily agree with their means, I am sure that their hearts are in the right place. I also believe that if they permit innovative schemes under clause 1, and if, as we all hope, those schemes raise standards for children in both good and bad schools, the Minister will have the good sense to identify, after a review, where such schemes have been successful. I hope that he will welcome the ability to amend or review the order, instead of allowing such schemes to be restricted by aspects of the Bill.

Amendment No. 7 would end the requirement that any such measure must be taken within a four-year period from commencement. By tabling that amendment, the Opposition accept the principle of innovation in schools. We accept that innovation should not just be with us for an experimental period of four years or just be this year's new educational initiative, but should add to educational debate and policy in the future.

That is why the amendments are vital, and I challenge the Minister to come up with a sensible and persuasive reason why, if innovation is to be promoted and facilitated, it should be allowed only for the next four years, and only in three-year chunks with a maximum total period of six years. If innovation works, why will the Minister not take the sensible power and allow it to continue to work in the future?

Stephen Timms (Labour, East Ham)

I listened with interest to the hon. Gentleman. I am a little disappointed that we could not hear the hon. Member for Epsom and Ewell (Chris Grayling) introducing his amendment No. 39 because, not for the first time, it pushes in the opposite direction to his hon. Friend's amendments. The amendment tabled by the hon. Member for Epsom and Ewell would constrain and reduce the powers, whereas the hon. Gentleman's amendments would extend them.

I will comment on amendment No. 39 as it is on the amendment paper, although it has not been moved. In many instances, only a few schools will apply for an

exemption. Any clash with legislative provisions will be small, and the privileges are largely a matter of detailed process.

Stephen O'Brien (Conservative, Eddisbury)

On a point of order, Mrs. Adams. I should be grateful for your guidance on whether it is in order to speak to an amendment that has not been moved.

Irene Adams (Labour, Paisley North)

The amendment was selected with amendment No. 4, so if the Minister wants to speak to it, he can do so under the rules.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

Further to that point of order, Mrs. Adams. Your guidance this morning was that you would not accept starred or late amendments. Amendment No. 42 was placed with our other amendments in due time but, although it appears on the amendment paper, was not selected. It was pertinent to the question of how we limit schools or authorities that cannot get the full powers to innovate. I would be grateful for an explanation, Mrs. Adams. If the Minister can discuss an amendment that has not been moved, perhaps he could speak on an amendment that has not been selected.

Irene Adams (Labour, Paisley North)

If the amendment was not selected, the hon. Gentleman should have raised it at the beginning of the proceedings. If he wishes the Clerk to give him an explanation of why it was not selected, he will be happy to do that.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I would be enormously grateful for Mr. Lloyd's immense wisdom.

Irene Adams (Labour, Paisley North)

The hon. Gentleman will need to talk to the Clerk later. We cannot discuss it while the Committee is sitting.

Stephen Timms (Labour, East Ham)

I was trying to be helpful to the Committee. I am not sure whether the hon. Member for Epsom and Ewell was embarrassed about amendment No. 39, and I am beginning to wonder whether he is absent by design. Nevertheless, I will continue. It would be impractical and inappropriate to take up the House's time by insisting on a full debate every time a relatively modest proposal was received from a school.

Graham Brady (Conservative, Altrincham and Sale West)

To assist my hon. Friend the Member for Epsom and Ewell, I must point out that the amendment would not necessarily provide for a full debate in the House. It would merely require the approval of each House, which would not necessarily have to be by affirmative resolution procedure.

Stephen Timms (Labour, East Ham)

It was my understanding of the wording that there would have to be a positive resolution of the House. That would be overly bureaucratic given that many proposals are likely to be modest.

The hon. Member for Altrincham and Sale, West (Mr. Brady) spoke to amendments Nos. 4 and 7. The Bill makes provision for innovative proposals to be introduced on a pilot basis, which is fundamental to

the character of the proposals in this chapter. We will want to examine the success of the pilot project to see whether it could be extended, and in considering the application of a qualifying body to have an order extended for a further three years, the Secretary of State will want to take account of previous experience. If a pilot project is successful, there will be three ways in which we can progress to permanent change. The first is through a permanent change to the law in primary legislation for all schools. The second is through an extension of areas of earned autonomy in chapter 2, which again will be done by primary legislation. The third possibility is through a regulatory reform order, which will also allow us to make a permanent change.

The power in chapter 1 will be wide ranging and extremely valuable in testing flexibility as a first stage in the deregulation of education legislation. However, it is not appropriate as a permanent legislative tool, which is what the amendments imply by suggesting a power to extend it indefinitely. Permanent legislative change would require a greater degree of legislative scrutiny than is envisaged for the pilots that are possible under chapter 1. The amendments would move us away from the process of trying out innovative pilot projects to determine what works best, and instead allow for changes introduced on a pilot basis to be continued indefinitely without the need for making a more permanent change in the law. On reflection, I hope that the hon. Gentleman agrees that that is not a satisfactory basis on which to proceed, given that three other mechanisms will be available to make the change permanent if Parliament wishes.

The term ''innovation'' implies something new, and it would be a bit odd to talk about innovation carrying on for decades. By definition it would no longer be innovation, and should be dealt with in the ordinary legislative way. These powers are appropriate for trying out new things.

Andrew Turner (Conservative, Isle of Wight)

I listened carefully to the Minister's explanation for resisting the amendment. I suspect that he has taken the place of the Liberal Democrat Members on this notional tightrope. He now seems to be saying that innovation is a good thing, but that if we allow it to go on for too long it ceases to be innovation. He must undertake the Sisyphean task--if I may mix a metaphor--of pushing the innovation, which has ceased to be an innovation, up the mountain of difficulty if he is to achieve any kind of slot in the legislative timetable.

Stephen O'Brien (Conservative, Eddisbury)

Through the tightrope.

Andrew Turner (Conservative, Isle of Wight)

Indeed. I suspect that the Minister found this phrase in the Bill sometime after the amendment was tabled, and then had to cast around for a reason for resisting it. I doubt whether he decided on it well in advance when he was discussing the Bill and saying to his civil servants, ''We must have innovation, but innovation of three years deserves to be scrutinised once again by the Secretary of State, and innovation of six years would be more than flesh and blood can stand.'' It is absurd to say that innovation is

so good that we want it to continue, but the only way to allow it to continue is via one of the three highly complex and difficult mechanisms that he described.

I have seen the papers associated with the only regulatory reform mechanism in the education field, and they are even thicker than the Bill. They amend the process of funding voluntary-aided schools. A regulatory reform mechanism requires a great deal. As for the queue for parliamentary time and slots, if the Minister thinks that hon. Members have not got enough legislating to do, he is right to ask for more legislation, but the Government are missing this opportunity.

What will happen if the Minister is unable to find a legislative slot? It is not unknown for Bills to be dropped at short notice because of matters entirely outwith the control of the Cabinet Legislation Committee. It happened this year. Does that mean that the innovation that has been so successful must cease? Does it mean that a project that delivers services to pupils with special educational needs in a particularly new and interesting way must cease for 12 months? What damage could that do to those pupils? Is it really necessary for such a project to be the subject of primary legislation when only two or three schools, regrettably, have adopted it? This is an unnecessary constraint not so much on the powers of the Secretary of State as on the ability of schools to innovate, which my hon. Friends so strongly support.

Graham Brady (Conservative, Altrincham and Sale West)

I am disappointed by the Minister's response which seemed to start from the premise that if change is to be permanent it requires proper parliamentary scrutiny. By implication, he does not believe that the measures in the Bill as it stands allow for proper parliamentary scrutiny. He has to decide whether the scrutiny provided for in this Bill is adequate. If he believes that it is not, he may be minded to support some of the amendments that Opposition Members have tabled or will table later.

The Minister says that if an innovation project were to be permanent, it would need more scrutiny, yet the provisions in the Bill would allow for such innovation to go on for six years. What exactly does the Minister think is permanent: in the life of a school, in the life of a child attending a school or for five years? If a school with a sixth form is able to retain its sixth form after the Government have had their way, six years would amount to a considerable degree of permanence.

The Minister further said that there are other mechanisms for meeting our objectives in amendments Nos. 4 and 7, such as resorting to primary legislation. He has already told us that the Government's whole drive and policy is to avoid primary legislation and to use delegated legislation, so he is already contradicting himself.

Unlike so many other aspects of Government policy, these measures involve pilot projects, and they will be given a chance to prove their worth over a period of three years or, if renewed, six years. Therefore, on this very limited aspect of the Bill, Opposition Members--I do not know whether I speak for the hon. Member for Harrogate and Knaresborough and his hon. Friend the Member for

Yeovil (Mr. Laws)--are willing to trust Ministers. Ministers will be able to see whether schemes that have been floated will work--I was going to refer to flying kites, but I thought it unwise to get into more tangled metaphors.

As my hon. Friend the Member for Isle of Wight (Mr. Turner) rightly said, the recourse that the Minister hopes to have to primary legislation in future is a very dangerous path to chart.

Stephen Timms (Labour, East Ham)

A difficult tightrope.

Graham Brady (Conservative, Altrincham and Sale West)

Yes, a difficult tightrope. The Minister is confident that worthwhile innovation will be spawned by the measures in the Bill, and, like me, he wants such worthwhile innovation to flourish over a period of three years, and renewed for a further three years. Even with recourse to the facilities of a bullying, control freak Government Whips office, surely the Minister cannot be confident that, should the present Government remain in office, it will be possible to bring primary legislation through the House in time to renew a valuable scheme that has proven its worth in improving the education of children. It is truly bizarre that, in the context of a Bill that gives the Secretary of State vast new powers, Ministers are so coy and reticent about schemes that have proved their worth and value.

The Minister went on to say that there were two other routes, one of which was an extension of the earned autonomy provisions, which can be done by order. The Minister is again contradicting his earlier point. If my amendment is inappropriate, how can it possibly be appropriate to make a permanent change by order extending the earned autonomy provisions? That is nonsense. I suspect that the truth is that the Minister does not believe that there is scope to do all that may be necessary under clauses 1 and 2.

The Minister then went on to discuss a third way, the regulatory reform order. If that is a viable alternative, why has it not been used before to allow innovation in education?

The Minister's contribution was not a serious attempt to justify the Government's position, and it was not worthy of him. He said that it would be wrong for innovation to continue for decades, because, by definition, it would not be innovation. In an earlier exchange, the Minister suggested that a particular amendment would be a charter for lawyers. However, in his remarks a few moments ago, he applied a partial definition to innovation. Surely, he is aware that our remarks in the Committee can be considered by the courts.

If the Minister really wants a genuine opening up and flourishing of schools through innovative projects, I hope that he will reconsider his remarks and accept that innovation can continue and that, clever and far-seeing as he or other members of the Committee may be, we cannot always anticipate innovations that may make significant differences.

Several hon. Members rose—

Graham Brady (Conservative, Altrincham and Sale West)

I am spoiled for choice. I will take an intervention from my hon. Friend the Member for Eddisbury first.

Stephen O'Brien (Conservative, Eddisbury)

There is a world of difference between innovation as an identifiable outcome or product, and innovation—the Minister more accurately used the phrase ''innovative proposals''—that is more a way of life, a culture, an attitude, or an approach, whether in school, business or any walk of life. The Bill presents innovation as something that is identifiable and measurable.

The use of the word ''innovative'' has caused further confusion, which has been rightly highlighted by my hon. Friend. There has been no clarification of the word used, which is crucial to the Bill and important with respect to the cultures that exist in schools.

Graham Brady (Conservative, Altrincham and Sale West)

My hon. Friend makes an important point. I am pleased that I took his intervention when I did, as the Minister is away at the moment. The discourse on the subject might have been much longer had I not. My hon. Friend's comment casts doubt on the Government's commitment to innovate.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

The longer the hon. Gentleman speaks on the amendments, the more difficult it becomes to make progress, because we do not know what is in the Government's mind with respect to innovation. The comments of the hon. Member for Eddisbury (Mr. O'Brien) about innovation, whether in the commercial or the public sectors, were also pertinent.

We wanted not only a new Bill, but all existing education legislation to be taken away and rebuilt to provide a framework that would allow genuine innovation to flourish. With the Bill, we have the worst of both worlds. We are retaining existing legislation—including the School Standards and Framework Act 1998 and the Education Act 1996—and we are trying to allow for innovation by disapplying bits of that legislation, rather than having a genuinely reforming Bill that gets rid of much of that legislation and allows innovation to flourish with the minimum restriction. That is the problem that we have in dealing with the Bill.

Graham Brady (Conservative, Altrincham and Sale West)

I am slightly concerned at the number of times I have agreed with the hon. Gentleman today, but he makes an important point. If Ministers were really committed to the flexibility that many members of the Committee would like, they would be following a different route. Even given the constraints of the Bill and the powers that Ministers are giving themselves, we have had no real indication so far of how they want to use them. Perhaps that makes it all the more remarkable that I am prepared to trust Ministers as far as I said I would.

There is no consistency, rationale or common sense in the approach that Ministers take in the Bill. It is contradictory and bureaucratic. Ministers propose to return to the House in due course with further primary legislation. They may say that a proposal has been demonstrably working for the last six years, but although they had power and primary legislation before, they did not have the power to keep it going. I

hope that, on reflection, the Minister will agree that it would be sensible to remove the restrictions. If he does not, I shall seek to divide the Committee.

Stephen Timms (Labour, East Ham)

I shall take just a few bold strides further up the mountain. I was going to say that the hon. Gentleman was arguing contrary to the position that he had previously taken, but then I discovered that he was arguing in both ways in the same sentence. In one breath, he says that we are taking vast new powers and that that is unjustified, but in the next breath he says that we should make them vaster still. I say that that is wrong. The procedure in the Bill is appropriate for piloting projects, but other procedures are more appropriate for a permanent change to the law.

The hon. Member for Isle of Wight asked what would happen if a bit of the Bill was dropped. That is precisely why the Bill makes provision to extend an order for a further three years. A regulatory reform order can be obtained in no more than 18 months, so the intention is well covered.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Graham Brady (Conservative, Altrincham and Sale West)

On a point of order, Mrs. Adams. Could you clarify whether we voted only on amendment No. 4, or on amendment No. 7 also?

Irene Adams (Labour, Paisley North)

The Committee voted on amendment No. 4.

Graham Brady (Conservative, Altrincham and Sale West)

It was my intention to press amendment No. 7 to a Division as well.

Irene Adams (Labour, Paisley North)

It will have to be taken later. We will take amendment Nos. 5 and 6, after which you can move amendment No. 7 formally.

Graham Brady (Conservative, Altrincham and Sale West)

I beg to move amendment No. 5, in page 2, line 38, at end insert—

''(3A)Before making an order under this section, the Secretary of State or the National Assembly shall have regard to such guidance as may be published by the Chief Inspector''.

The amendment would impose a rationale on the decision-making process. It would create a new subsection (3A). The amendment would not remove clause 2(3), which allows the Secretary of State or the Welsh Assembly to consult the chief inspector. I contemplated deleting that subsection and replacing it

with a requirement to consult. However, I am anxious to be helpful, and to avoid an explosion of bureaucracy for schools or the Department for Education and Skills. We are keen to see the Department working as smoothly as possible.

It seemed sensible to take a different approach. The amendment requires the Secretary of State or the Welsh Assembly to

''have regard to such guidance as may be published by the chief inspector''.

As the Minister commented, there may be many orders under the provisions. Some may be relatively small in scope. Rather than requiring Ministers to consult the chief inspector on every occasion, which may hinder him in carrying out other duties, the amendment would allow him a degree of authority in the process. Guidance could set out specific elements of innovation that are unhelpful and elements that have been demonstrated to improve standards, or set criteria of value to Ministers in understanding where innovation has been successful.

It is not a contentious amendment, and I hope that the Minister will accept it and urge his hon. Friends to do the same. It would improve the process by ensuring that when the chief inspector has clear strong views about the application of measures relating to innovation, Ministers would be expected to take them into account.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

We do not support the amendment, and I am sorry to break ranks with the hon. Gentleman. We seem to have been getting on so well, with our pig on a tightrope pushing a boulder uphill.

Stephen O'Brien (Conservative, Eddisbury)

It was an elephant.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

We seem to have got smaller during the day.

There is a query about the role of the Office for Standards in Education in England and the chief inspector in Wales or England. We have argued consistently that Ofsted should have a new developmental role, rather than one of pure inspection. The Committee should consider what the former chief inspector would have been able to do with such powers. I know that the hon. Member for South Shields was a personal friend and that he often dined in his palatial apartments. [Interruption.] I do the hon. Gentleman a disservice; he only worked at No. 10. The former chief inspector assumed powers that he did not have. He spoke continually on matters of education for which he did not have a direct responsibility. To give a chief inspector powers to create guidance for innovation would be unacceptable, and I hope that, on reflection, the hon. Gentleman will agree.

Ofsted and the chief inspector have a clear role. Ofsted has won much support from our schools for the temperate way in which the present chief inspector has gone about his business. The new Ofsted regime uses a light touch, which has built confidence in schools. The thought of giving Ofsted new powers to create guidance for innovation would send out all the wrong signals. I am surprised, given the leanings of the hon.

Member for Altrincham and Sale, West, that he should want another body to put out regulations. I trust that, on reflection, he will realise the error of his ways.

Stephen Timms (Labour, East Ham)

The hon. Member for Harrogate and Knaresborough has made a good part of my argument for me. It would be an odd arrangement if the Secretary of State, who is elected, were required to have regard to guidance issued by the chief inspector, who is appointed on her recommendation. I cannot think of a precedent for that, and it would make the arrangements unduly bureaucratic. The hon. Member for Altrincham and Sale, West said that he does not want that. As he has already pointed out, clause 2(3) provides that, if the Secretary of State thinks it appropriate, she may consult the chief inspector.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

One purpose of the amendment that was not selected was that, when Ofsted had instigated special measures for a school, the Secretary of State should take cognisance of the chief inspector's comments. Most schools would accept that set of circumstances. If a school had serious weaknesses or was subject to special measures, and was applying for innovative powers under the legislation, the chief inspector would have a duty to tell the Secretary of State. What does the Minister think about that?

Stephen Timms (Labour, East Ham)

The hon. Gentleman makes a sensible point, and it would be likely in those circumstances that the Secretary of State would consult the chief inspector before granting an innovation. That also helps to make the point that schools in those circumstances may apply for use of the powers. There was debate earlier around the fear that that would not be case. However, such schools will be able apply and, in that situation, the Secretary of State would consult the chief inspector. The Committee should not support the amendment.

Graham Brady (Conservative, Altrincham and Sale West)

I am far from happy with the Minister's remarks. Many amendments tabled to date would not have been necessary had Ministers been prepared to include more detail about how they propose to use the powers to allow innovation. The Minister is still not giving the Committee any real answers on that. This probing amendment seeks to draw out more information from the Minister about the Government's real intentions.

Stephen O'Brien (Conservative, Eddisbury)

In responding to the many concerns about the clauses, especially this one, the Minister seeks valiantly to claim that this is not a centralising and controlling measure. However, no account is taken of the fact that if no more details are introduced, the only guidance that many schools will have will be the body of precedence as to whether it is likely to be worth their while applying. Some of those schools may be under special measures to which the hon. Member for Harrogate and Knaresborough referred, and there is a sense that a school will be deterred if the hurdles become too difficult, especially for a school that has some innovation but is otherwise struggling. The Government have neither highlighted nor taken into account that deterrence, which also

operates as control. That is why Opposition Members suspect that the measure is much more controlling and centralising than the Government like to admit.

Graham Brady (Conservative, Altrincham and Sale West)

My hon. Friend is right when he talks about schools having to take precedence into account—what Ministers have been prepared to grant in the past. The corollary of that is that the indications emanating from the office of the Secretary of State would vary according to the holder of that office. My amendment seeks to make the decision-making process more stable and consistent, so that the decision to proceed is not taken at the whim of the Secretary of State, which is too much the case in the Bill. Such decisions must be taken after a rational assessment of the ability to raise standards in schools, but instead we have an assessment that is based on the personal views, or the ''opinion'', of the Secretary of State. I am not happy with the Minister's assurances, but I do not want to press the matter to a Division and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Graham Brady (Conservative, Altrincham and Sale West)

I beg to move amendment No. 6, page 2, line 38, at end insert—

'(3B)Before making an order under this section, the Secretary of State or the National Assembly shall, if he or it considers it appropriate to do so, consult, the local education authority'.

It will not have escaped the Minister's attention that the wording of this probing amendment echoes wording elsewhere in clause 2. Subsection (3) states clearly:

''Before making an order...the Secretary of State or the National Assembly shall, if he or it considers it appropriate to do so, consult the Chief Inspector.''

When we contemplate such a broad and enabling Bill, we contemplate the odd occasions on which Ministers have been prepared to include specific detail, and we assume that there is a reason. If subsection (3) were not in the Bill, I might be happy to take the Minister's assurance that the Secretary of State will consult all sorts of people, that any sensible person would do so and that it would always be common sense to consult the chief inspector and countless other interested bodies. Instead, Ministers have chosen to specify that the Secretary of State or the National Assembly for Wales will consult the chief inspector if they consider it appropriate to do so.

Amendment No. 6 echoes that wording in order to draw out from the Minister the role he sees for local education authorities. We do not seek to require the Secretary of State or the National Assembly for Wales to consult local education authorities, but I propose that we include in the Bill a provision for consulting the local education authority equivalent to that made if it is considered appropriate to consult the chief inspector.

If the Minister has compelling reasons why the power to consult the chief inspector and not the local education authority should be written into the Bill, I am sure that hon. Members on both sides of the Committee would be most interested to hear them.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I strongly support the amendments and the comments of the hon. Member for Altrincham and Sale, West. It echoes the point made this morning on which the Minister gave us assurances. On reflection, he would probably agree that it is right and proper to include in the Bill the need to consult local authorities. Perhaps I may refer the Minister to the White Paper published this afternoon, ''Strong Local Leadership-Quality Public Services''. The statement made by the Secretary of State for Transport, Local Government and the Regions, and indeed much of the White Paper—I have not read it all, but I have read a great deal of it—gives a new emphasis to partnerships with local authorities and the way in which local authorities should be used as innovative organisations rather than in their traditional role as simply providers of services. We strongly support that view.

In the light of that, to try to achieve joined-up government—

Graham Brady (Conservative, Altrincham and Sale West)

I am grateful to the hon. Gentleman for allowing me to intervene precisely on cue. Does he believe that if the Government were in any sense joined-up, we would have seen the publication of the White Paper on local government reform during the Committee stage of a Bill with which it is inextricably bound, and in which the role of the local education authority is being considered? It should have been published before we commenced.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I, too, find this sad as someone very committed to the process of local democracy. The White Paper emphasises a new role for local democracy and puts it at the heart of things. We have a set of regulations, but the Secretary of State does not see fit even to refer to local authorities in this part of the Bill. Those are conflicting messages. I am sure that that was an oversight when the Bill was drafted, rather than a deliberate policy.

David Miliband (Labour, South Shields)

Can the hon. Gentleman confirm that local education authorities are able to make the application themselves under this provision? We are hoping that local authorities will be innovators, not merely consultees on other people's innovation.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I am grateful to the hon. Gentleman for that. We would like to see local authorities doing exactly that. We shall support the amendment if it is forced to a Division.

Stephen Timms (Labour, East Ham)

I am pleased that the hon. Member for Harrogate and Knaresborough supports the excellent White Paper that has been produced today. I hope that his views will be echoed throughout the House.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I did not say that it was excellent.

Stephen Timms (Labour, East Ham)

I thought I heard him say that it was excellent. He supported its ideas, and I welcome that. I indicate our strong support for partnership with LEAs. That is the basis of clause 4. Clause 4(2) states:

''Before making such an application, the qualifying body shall consult such persons as appear to the body to be appropriate, having regard to any guidance given from time to time''.

I made it clear this morning that the guidance would include consulting the LEA. That arrangement of schools consulting LEAs and obtaining their opinions is consistent with the partnership model because we want partnership between schools and LEAs. It would not be appropriate for the school to approach the Secretary of State without consulting the LEA, as the Secretary of State would have to consult the LEA about the proposal. The Bill is more consistent with the partnership model in the White Paper, which is the procedure that I described this morning.

Stephen O'Brien (Conservative, Eddisbury)

If the Minister is praying in aid clause 4(2), it would be helpful if the draft guidance could be made available to the Committee. It could affect a raft of amendments, some of which are probing. In spite of the Minister's obvious enjoyment in suggesting that our amendments went in two directions, one cannot probe without looking at the full canvas of options.That is highlighted by clause 4(2), because it has been prayed in aid to the debate on clause 2. Although the Minister's word is trustworthy, it is difficult, without a copy of the guidance, to understand the motivations and eventual practice of the Bill.

Stephen Timms (Labour, East Ham)

I gave the same assurance on that point as I gave this morning. It addresses that concern, and I hope that the Committee is satisfied.

Chris Grayling (Conservative, Epsom and Ewell)

The Minister described a partnership between a school and an LEA. A school may come to the Secretary of State for consent without the partnership of the LEA. The hon. Member for South Shields made that point this morning from a sedentary position. Surely, it would be a natural part of the process to require the Secretary of State to consult the LEA to understand its perspective? A school and an LEA may submit an application in tandem, but if that does not happen, the Secretary of State has apparently excluded a mechanism through which the Minister can consult the LEA.

Stephen Timms (Labour, East Ham)

I can help the hon. Gentleman on that. Clause 4(1), says that the application will need to contain

''such information, as may be required by the Secretary of State''.

That would include the response to consultation of the LEA obtained by the school.

Chris Grayling (Conservative, Epsom and Ewell)

One problem with the Bill is the recurrence of such phrases as

''may contain such guidance as the Secretary of State will offer''.

In reality, there is no clear guidance. It is at the Secretary of State's ad hoc discretion. It is of fundamental concern to the Opposition that the Bill appears to offer the Secretary of State untrammelled powers to do almost anything that he or she wishes to do. We want to amend it to provide more clarity, not only for the benefit of the schools who will ultimately apply for the new status, but to provide context for the Secretary of State's decisions.

Graham Brady (Conservative, Altrincham and Sale West)

We have had an interesting short debate. The hon. Member for South Shields rightly pointed that an LEA might itself propose an innovation. Both

Government and Opposition Members accept that, but it is clear that other circumstances might prevail. As my hon. Friend for Epsom and Ewell said, there may be no partnership between the school and the local authority, possibly because bad relations exist. Alternatively, for whatever reason, the local authority consulted by a school may not agree with the proposal put forward. The innovation may none the less be very much in tune with the thinking of Ministers and with experience in other schools where innovation has been shown to work.

The Minister sought to fall back on the protection of clause 4 (2), which states:

''Before making such an application, the qualifying body shall consult such persons as appear to the body to be appropriate, having regard to any guidance given from time to time by the Secretary of State or, as the case may be, the National Assembly for Wales.''

That does not get us past the problem that a school may make an application that the LEA does not support and there may be all sorts of communication breakdowns between the school and the LEA.

The amendment would not be too onerous on the Secretary of State because it places no obligation on her. It would put the LEA on the same basis as the chief inspector among the statutory consultees. The Secretary of State would not have to consult it, but could do so where appropriate. It is odd that Ministers see fit to put one consultee into that category, while resisting inclusion of another body—the LEA. That is difficult to understand.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

Does the hon. Gentleman agree that specifying somebody who is appointed by the Secretary of State but who is not democratically elected flies in the face of the White Paper that has just been produced?

Graham Brady (Conservative, Altrincham and Sale West)

That is very much the argument that the Minister advanced in challenging my previous amendment. Apparently, he does not think that it applies here.

At the outset I said that I intended the amendment as a probing amendment, but I am not satisfied with the Minister's response. The amendment is not prescriptive, but seeks merely to place the LEA on the same footing as the chief inspector as a body that may be consulted, if deemed appropriate, by the Secretary of State. I am confident that my drafting will stand scrutiny because I have copied its wording from something written by the parliamentary draftsmen and I invite the Minister and other Government Members to support the amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 8.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I beg to move amendment No. 48, in page 2, line 42, leave out 'may', and insert 'shall'.

I am conscious of the time, so I shall be as brief as possible. Clause 2(5) contains a mish-mash. It states:

''The Secretary of State or the National Assembly for Wales may from time to time give guidance as to the matters which the Secretary of State or the Assembly will take into account in determining whether to grant applications''.

That seems to mean that there may be no guidance at all. The provision gives the Secretary of State carte blanche to do whatever she wants.

Mine is a probing amendment. Will the Government define, in guidance or elsewhere, the scope for innovation? What criteria will the Secretary of State use to judge whether a project is innovative and will raise standards? Until people try something innovative, they do not know whether it raises standards. That is the whole idea of innovation. Until an innovation has had time to work through the system and be evaluated, we do not know whether it raises standards.

The Committee has a right to know what the Government had in mind in framing the legislation and where its parameters lie. Using ''shall'' rather than ''may'' would not mean that the Secretary of State would give guidance on every innovation, but there would be an assumption that guidance would be given.

The hon. Member for Eddisbury talked earlier about a lawyers' charter. Various disputes could arise unless there is clarity of guidance. Let me give the example of the disapplication of teachers' pay and conditions, which is a hugely controversial aspect of the Bill. Unless we get it right and the Secretary of State gives clear guidance about the parameters for varying pay and conditions, we could get into an unholy row. I seek guidance from the Minister.

Stephen Timms (Labour, East Ham)

I can help the hon. Gentleman by giving a firm commitment that the Secretary of State will issue guidance as she is empowered to do.

I am reluctant to restrict the field of innovations because we want schools and LEAs themselves to come up with new ideas that they think will raise standards of achievement. We want to put the ball in the applicant's court. We want to give the schools free rein to use their creativity and imagination to come up with innovative proposals. The key test that the Secretary of State will use will not be whether a proposal is innovative enough, but whether it will raise the standards of achievement.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

That is the heart of my point. As a head teacher, I had brilliant ideas on many occasions, but until one starts to work them out on the ground, one cannot know whether they will work. They often do not work out as expected. That does not mean that the

innovation is wrong. If there are four or five innovative projects and two or three work, that is a great success. I hope that that is what the Government are trying to achieve. I hope that we can avoid the safe territory and the current straitjacketing and have some real innovation, but how will the Secretary of State know which innovations will raise standards before they have taken place?

Stephen Timms (Labour, East Ham)

The Secretary of State will refer to experience elsewhere and will take the advice she needs to form a judgment. It may be an entirely new and untried proposal, and there will not therefore be any direct evidence. I am sure that that would have been one of the characteristics of the hon. Gentleman's innovations. The Secretary of State will then take a view on the basis of the best advice available about whether that will raise standards. That is the test that will be applied. She will not ask whether a proposal is innovative enough, but whether it will raise standards. If she concludes that it will, she will give her assent.

Part of the time the hon. Member for Harrogate and Knaresborough seems to be trying to put boundaries around that point, and that is precisely what we should not do. We should allow heads who are almost as creative and imaginative as he was to come forward with their own proposals. If they believe that those proposals will raise standards in their schools, we should encourage them to put them to the Secretary of State, and she will take a view about them.

Chris Grayling (Conservative, Epsom and Ewell)

I want to say a couple of words in support of the amendment. The Bill and the whole structure of the Government's proposals create an opaque cloud for those who are trying to work out how everything will develop. This morning the Minister referred to the fact that any school would be able to apply for exemptions under these provisions and hoped that many schools of vastly differing qualities and backgrounds would seek to do so. At the same time, the Secretary of State has made a number of public statements of aspiration about how the Bill will reward the best and that the exemptions will be directed towards those who have demonstrated a major contribution and have therefore earned the right to opt out of core provisions.

Given those slightly contradictory comments, I fear that many schools will seek to apply for an exemption that the Government may not be willing to give them. Surely it is a matter of duty for the Secretary of State to make clear the criteria against which applications will be judged. If that does not happen, there is a risk that schools, heads and governing bodies will put a lot of effort into applications that have no chance of success. The amendment makes a small contribution towards ensuring that there is much greater clarity for heads and governing bodies when they come to take the decision about whether the route offered by the Government is right for them. I hope that the Minister will consider that point.

Andrew Turner (Conservative, Isle of Wight)

I, too, am concerned about the nature of the proposals that the Secretary of State may or may not approve, for the reasons given by my hon. Friend the Member for Epsom and Ewell. Subsection (5) mentions guidance

''as to the matters which the Secretary of State ... may take into account''.

It applies not only to the possible outcomes or the regulatory changes or dispensations that the school is seeking but the very form of the proposals that the school brings forward.

I remind the Minister that proposals for changes to the character of schools before the School Standards and Framework Act 1998—I am not sure about the position subsequently—had to take a particular form, so that it was easy for those who were consulted and those who were making the decisions to ensure that every required element had been addressed. A checklist would be useful for schools that want to make proposals under the Bill. They would know that they have consulted a, b and c, who have to be consulted, and that they have gathered views from the governing body and parents, if the decision is not down to the head teacher only. The Secretary of State could usefully set that out in guidance without constraining the powers of governing bodies; indeed, that should happen.

Let us explore some possibilities. For example, let us consider a community school that is to become a faith school, with 85 per cent. of its pupils being Muslim. It has no desire to close, reopen and seek a foundation to support its application, but wishes to merge an existing foundation, perhaps a local religious group, with the existing school. Therefore, it needs approval from the Secretary of State to derogate from the existing powers, including school organisation committees and so on, to enable it to change the character of the existing school. However, under the present arrangements, there is some doubt whether the Secretary of State is willing even to contemplate such a move. Is it not reasonable that those who will devote so much time and energy to preparing the proposal should have some guidance from the Secretary of State, if not as to what she will accept then at least as to what she will not accept? That is the least that is reasonable.

Another example is a selective school in an area with a large number of selective schools that chooses to become non-selective. Will the Secretary of State accept such a proposal? Of course, the school could persuade the local education authority to go through hoops a, b and c, but the authority might be one that does not believe in such decisions being made by local schools. Most Conservative authorities do, but I am sure that the Minister can imagine one of the more antediluvian authorities, perhaps controlled by a party other than Conservative or Labour, saying, ''Hang on, what about the local democratic process? Is it right that the school should become non-selective when we, the councillors, believe that it should remain selective?'' Perhaps the school would prefer to apply to the Secretary of State to avoid the council's block on this highly progressive move—as some of them would see it—avoid the school reorganisation committee and

go for a relaxation of existing legislation, perhaps to move over time to becoming a comprehensive school. It would not be a quick change from grammar school one day to comprehensive the next, which so many grammar schools suffered in the 1960s and 1970s. It would be a phased change that all staff, pupils and parents could accept as being in the long-term interest of the school. The change must not radically alter the school's character over night, but over a long time. Is the Secretary of State willing in principle to accept any such amendment?

Is the Minister is saying that the Government will contemplate an application from any school, no holds barred, even if it wants to become selective or non-selective, or single sex having being mixed, or dispense with all requirements to deal with pupils with special educational needs? If he is saying that, it is fine. However, if he is not, it is only fair to give schools guidance before they waste time, effort and a huge amount of energy, which, in the event of such controversial proposals, they would probably generate with the local community and media and with the Member of Parliament. Does not the Minister understand why they want guidance on what is acceptable, or is he simply saying ''carte blanche''?

Stephen Timms (Labour, East Ham)

I shall respond to both contributions. The hon. Member for Epsom and Ewell is right that the Bill will provide for earned autonomy. However, it does not do so in the part of the Bill that we are discussing. It does so in chapter 2, which begins with clause 5. We are currently discussing chapter 1 and, as the Committee will have heard me say several times, its clauses do not deal with earned autonomy. Any school that believes that it has a proposal for raising educational standards can apply for the powers contained in chapter 1.

As I said, the Secretary of State will issue guidance. To comment on one point made by the hon. Member for Isle of Wight, I would expect the guidance to set out the kinds of people who should be consulted. That is envisaged in clause 4(2), where it says that

''the qualifying body shall consult such persons as appears to the body to be appropriate, having regard to any guidance given from time to time by the Secretary of State''.

I would expect the procedural aspect to be set out in guidance.

However, I do not agree that the guidance should include a list of all the things that will be allowed. That is contrary to what we want. We are looking for schools to come forward with ideas and proposals that we may never have considered. Equally, I do not think that the guidance should include all the things that we will not allow. I return the hon. Member for Isle of Wight to a helpful analogy that he put to the Committee this morning. Are we treating schools as toddlers or adults? His call is to go back to the toddler model and tell them that they can do some things, but not go beyond a certain boundary. That is not our approach; we want to treat schools as adults. We want to give the professional judgment of teachers and head teachers freer rein than was previously available. We want to tell them to come forward with proposals that

they believe will contribute to raising standards in their school and, if our assessment agrees, we will permit that innovation.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

This has been an interesting debate on the amendment, and I will not press it to a Division. However, in not having an explanation of Government policy at the beginning of the Bill, or some indication on guidance and regulations, we are all thrashing about in the dark. The examples I have given may be somewhat extreme; nevertheless, the lack of clarification leads us down that road.

It is disingenuous for the Minister to ignore the remarks of the Secretary of State, and indeed the Prime Minister, about earned autonomy being at the heart of the Bill, and simply to say that it is for all. He knows that it is not for all.

Stephen Timms (Labour, East Ham)

It is in the next part of the Bill, over the page.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I know that the Minister is growing extremely frustrated, but we are going to argue our case on these clauses.

Already the Secretary of State and, indeed, the Minister and the Prime Minister have made it clear in their overall consideration of the Bill—not a specific clause—that the concept of earned autonomy will be at the heart of it. That is not something for everyone. The quicker the Committee either accepts or rejects that, the better. In the debate on clause 1 we argued that we wanted autonomy for everyone, except in those cases vetoed by the Secretary of State. We even tried to give clear examples of where such permission should not be given. That was not acceptable, and we have moved on.

In terms of creating a vibrant framework for innovation, it is important that clear advice and guidance are given on crucial areas and that that does not lead schools or local authorities down unacceptable roads. I have a question for the Minister. In my constituency, which has very high-performing schools—the Minister kindly attended a prize-giving ceremony recently—not a single head teacher supports league tables. Can league tables be disapplied? If not, the Minister should say so immediately. Can SATs be disapplied so that children do not have to take them, let us say, at year seven? That is a reasonable request.

If the Department has said, ''We cannot possibly do those sort of things,'' at least let us know what they are so that schools have a clear idea of the broad parameters in which to work. The Minister has said that there will be guidance wherever necessary. I accept his word on that point.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 7, in page 3, line 1, leave out subsections (6) and (7).—[Mr. Brady.]

Question put, That the amendment be made:--

The Committee divided: Ayes 6, Noes 8.

Clause 3 - Variation or Revocation of Orders under Section 2

Graham Brady (Conservative, Altrincham and Sale West)

I beg to move amendment No. 8, in page 3, line 29, leave out subsection (2).

Irene Adams (Labour, Paisley North)

With this it will be convenient to take amendment No. 43, in page 3, line 30, leave out ''on one occasion only''.

Graham Brady (Conservative, Altrincham and Sale West)

I shall not detain the Committee. The amendment ties in with earlier amendments concerning flexibility in the innovation proposals. Earlier, the Minister unkindly suggested that the amendments were inconsistent. That is a demonstration of the huge prescience of Her Majesty's Opposition, who accurately predicted the Government's failure to support earlier amendments. They also predicted the Minister's argument that it was inappropriate to allow Ministers huge scope and flexibility because they could not be trusted to make decisions on innovation. Amendment No. 8 is an opportunity for the Minister to put those words into action. In his strong view, we need a better standard of parliamentary scrutiny of the provisions.

The amendment probes whether six years is the appropriate length of time for innovation to continue without parliamentary scrutiny, or whether three years would be more appropriate.

Chris Grayling (Conservative, Epsom and Ewell)

The provisions are extraordinarily vague. Will the Minister give us a detailed explanation, and some examples, of how the Government would use the provisions? One of my concerns is that the Bill does not clearly demonstrate how the Government will use their powers.

I hope that the amendment will tease out one aspect of the lack of information. I hope that the Minister will put into context how he has reached the conclusions in the clause, and how it will be used.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

The amendment has the same theme as amendment No. 43. We, too, find the clause difficult to understand. Why three years? Why one extension only? We look forward to the Minister's response.

Stephen Timms (Labour, East Ham)

As the hon. Member for Altrincham and Sale, West said, we have previously discussed this matter. At the time, the amendment he proposed was contrary to the current one, but I will not labour that point.

It is appropriate for an innovation pilot to run for three years, and it may be extended after that time for up to another three years. That decision takes into account a case where the change is put into primary legislation, but for some reason the Bill cannot proceed. A three-year extension would allow the innovation to continue, pending the legislative position being resolved. Opposition Members have accused us of adopting untrammelled powers in the measures; now they are urging us to ''untrammel'' them more.

We have struck the right balance. The mechanisms are appropriate for piloting, but inappropriate for making permanent changes to the law. There are other procedures in the House for making permanent changes, which I listed earlier. I hope that hon. Members will accept that we have the right balance of three years followed by a three-year extension.

Graham Brady (Conservative, Altrincham and Sale West)

I do not accept that the Government have got it right, but as I said when I moved the amendment, we have aired our concerns about the obvious inconsistency in the Government's approach in relation to earlier amendments, and I will not seek to press the matter to a Division.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

Likewise, we are happy not to press our amendment. However, the Minister is unrealistic if he believes that we can, in a short time, disapply terms and conditions for staff, adopt the Government's policy—which they abandoned in their previous term—of appointing super heads with extraordinarily high salaries, and create new types of school, such as fresh start schools, which was also Government policy.

Graham Brady (Conservative, Altrincham and Sale West)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4 - applications for orders under section 2

Stephen Timms (Labour, East Ham)

We have had some discussion about the first two subsections, which require schools or other qualifying bodies who propose to use the power to innovate to consult appropriate bodies. That is one of the checks and balances to ensure that all parties affected by the proposal have been consulted. We expect details and outcomes of consultation arrangements to be included in applications to the Secretary of State. Subsection (3) gives the Secretary of

State or the National Assembly of Wales, with the consent of the applicant, the flexibility to make different provision in a section 2 order from the provision originally requested. Consultation must be part of the proposals for innovative change. People have the right to have their views heard, and I hope that the Committee will agree that the clause should stand part of the Bill.

The discussions today have been useful, although we have made limited progress. We amended the programme motion to allow for possible discussion beyond 7 pm, and it may be in the Committee's interests to reconvene at 8 pm. I seek your guidance, Mrs. Adams.

Irene Adams (Labour, Paisley North)

What time does the Minister propose to conclude proceedings?

Stephen Timms (Labour, East Ham)

I did not have a specific time in mind, although I imagine that we will want to continue for some time. Do we have to specify a time now?

Irene Adams (Labour, Paisley North)

It would be helpful to know how long the Committee proposes to sit, because that will determine how long I suspend the sitting for dinner.

Stephen Timms (Labour, East Ham)

I suggest that we continue until 10 pm.

Irene Adams (Labour, Paisley North)

With the agreement of the Committee, we shall rise at 7 pm and reconvene from 8 until 10 pm.

Clause 4 ordered to stand part of the Bill.

Clause 5 - Interpretation of chapter 2

Graham Brady (Conservative, Altrincham and Sale West)

I beg to move amendment No. 67, in page 4, line 5, leave out 'prescribed criteria' and insert

'criteria prescribed by the Secretary of State after consultation with such organisations or bodies as he considers appropriate and'.

Irene Adams (Labour, Paisley North)

With this we may discuss amendment No. 9, in page 4, line 8, leave out subsection (2).

Graham Brady (Conservative, Altrincham and Sale West)

Under amendment No. 67, I again seek to put a little flesh on the bones of the Bill. The amendment would substitute a slightly broader wording for the current phrase, and I had a clear purpose in tabling it. Under subsection (1), if a school is

''of a prescribed description which satisfies prescribed criteria relating to the performance of, or the quality of leadership in, the school'',

the rights of other interested bodies are not fully taken into account. If the amendment were incorporated into the Bill, there would be a small restriction on the Secretary of State's wide discretion to set out the prescribed criteria, which would be replaced by something a little more informed.

Under the clauses in chapter 2 on exemptions related to school performance, which the Minister would categorise as the earned autonomy measures, my hon. Friends and I shall be seeking a clearer idea of

how autonomy will be earned, how it will work, how the Secretary of State will arrive at the prescribed criteria and what they will be.

Let me now deal with amendment No. 9. Subsection (2) states:

''The criteria prescribed for the purposes of subsection (1) may include criteria referring to the opinion of the Secretary of State or the National Assembly for Wales.''

Sadly, the Parliamentary Under-Secretary of State for Wales is not here to enlighten the Committee about the exact procedure in the National Assembly and how it arrives at a corporate opinion in these matters.

Hywel Francis (Labour, Aberavon)

Will the hon. Gentleman give way?

Graham Brady (Conservative, Altrincham and Sale West)

I will happily give way, because I am sure that I shall learn something.

Hywel Francis (Labour, Aberavon)

The consultation document entitled ''The Learning Country'' was widely discussed in Wales, and the Bill is the fruit of that exercise.

Graham Brady (Conservative, Altrincham and Sale West)

I am grateful to the hon. Gentleman although I am not sure he has cleared up the confusion that may be felt by some Members from the English side of the border.

Given that we are dealing with primary legislation that creates new powers, a new procedure and new mechanism for earned autonomy, it is something that may relate not just to the current situation, following discussions and debates on ''The Learning Country'' but may carry on into the future, potentially without any limitation. In that case, at the appropriate time, when a school might be hoping that its success is taking it through the hoops of earned autonomy, it will need to know what those hoops will be. In the context of schools in Wales, the opinion of the National Assembly may, presumably, change from time to time as indeed may the opinion or the person of the Secretary of State for Education and Skills in England

As currently drafted, the Bill, particularly clause 5(2), contains a remarkably wide power. It enshrines in legislation the importance of something that is merely opinion. It is not required in the terms of the Bill to be informed opinion, but is merely a power to include criteria that refer to the opinion of the Secretary of State or the National Assembly for Wales.

Given that the criteria may include reference to the opinion of the Secretary of State, I think it is axiomatic that the criteria may include things that do not refer to the opinion of the Secretary of State. The decision will not, therefore, simply be made on the premise of what the Secretary of State happens to think is the right way to proceed; there will be other criteria.

Those other criteria may be entirely logical, practical and consistent. They may specify, for example, the outcome of a school's inspection, the opinion of the chief inspector or the opinion of the LEA. They may specify a certain level of improvement at the school whether it be progress through value-added league tables, dealing more effectively with

special educational needs or in improving the education of children for whom English is not the first language.

All those things might be described as the rational criteria that may be set out under the terms of this Bill, and which any school may look at to assess its chances for increased autonomy. It may feel that it has a right to increased autonomy because—in the words used by Ministers—it has earned autonomy.

We come back, however, to the appalling subsection (2), which, as well as sensible, rational, properly measured and transparent criteria, allows criteria that relate to the opinion of the Secretary of State. That should concern hon. Members on both sides of the Committee, as it concerns those working in schools. One refrain that is heard increasingly from teachers and heads is that they want more control over what goes on in their school and how they educate their pupils. They want to be able to earn autonomy. Indeed some of them believe that they are already earning rather more autonomy than they are allowed as they are not granted that much anyway. They believe that the LEA and the Department for Education and Skills between them manage to interfere and pile on bureaucracy at every turn.

Here we have a way that Ministers could set out objective, transparent criteria with no reference to the opinion of the Secretary of State or indeed of the National Assembly for Wales. Instead they could set out a way in which a school, a head or a governing body, would know what had to be done to qualify. If a school's goal was to have more autonomy so that it could engage in more innovative practices, reduce levels of bureaucracy and perhaps tackle some of the problems of teacher workload, it could see where it had to get to achieve that. Instead, the Bill contains the most opaque terms possible.

There is not even a requirement on the Secretary of State to have formed an opinion on the basis of a rational process of consultation and discussion. The Secretary of State's opinion can rank as a criterion along with everything else. It does not matter if the school has met all the challenges that any rational person would want to see it meet. It could be a school that has improved dramatically over a period of years. It could be achieving the best exam results in its neighbourhood. It could be a school that was highly prized by the local community. Yet the wild card is thrown into the game: is it the Secretary of State of the opinion that that school has earned autonomy?

In these two amendments I am seeking to begin to set out the process whereby earned autonomy can be really that. Instead of it being autonomy on the whim of the Secretary of State, we can have a new approach to the regulation and control of our schools under which they know what the criteria are for earning autonomy. This is an entirely constructive pair of amendments and I hope that the Minister will accept that they would contribute something important to the Bill.

Phil Willis (Liberal Democrat, Harrogate and Knaresborough)

I agree with the hon. Gentleman. These are important amendments. I will try to fill the two minutes that we have left, as I get on the elephant and push it uphill. I have a problem with the second part of amendment No. 67, which says:

''with such organisations or bodies as he considers appropriate''.

Unless one specifies those bodies, the Secretary of State could say that she would not involve the teacher unions about pay and conditions for teaching staff. The Conservative Government bypassed the teacher unions with the schoolteachers' pay review body, which took away negotiating rights from the teacher unions. That might be the case with that part of the amendment.

The hon. Gentleman raised a crucial issue. The Minister has been growing impatient with us. We have been waiting until we got to this clause for him to tell us how the Secretary of State will outline the criteria for earned autonomy. Every school in the land that is following the debate with avid interest wants to know what earned autonomy means. One of the most insulting things that the Government have done is to tell the vast majority of our heads, governors and schools, after all that they have done to improve standards and to work hard to meet the Government's initiatives over the past four years—

Sitting suspended.

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