'(1) In section 81 of the School Standards and Framework Act 1998 as amended by Schedule 21 to this Act there is added at the end of sub-section (1) "or as he considers necessary to ensure that persons employed to work in schools to whom those provisions apply have the benefit of the rights conferred by school enactments as if the governing bodies of those schools were their employers.
(2) In Paragraph 3 of the Education (Modification of Enactments Relating to Employment) Order 1999 S.I. 1999/2256. There is added
(a)after sub-paragraph (1)(e)
(f) in the case of the Transfer of Undertakings (Protection of Employment) Regulations 1981 references to a relevant transfer includes transfers from one governing body to another
(b) in the Schedule "Transfer of Undertakings (Protection of Employment) Regulations 1991.".'—[Mr. Willis.]
§ Brought up, and read the First time.
§ Mr. Speaker
With this it will be convenient to discuss the following: New clause 20—Responsibilities for the National Assembly for Wales—'Any reference made to the Secretary of State in relation to responsibility for teachers pay and conditions shall be taken to mean the National Assembly for Wales when these functions are exercised in Wales.'.Amendment No. 90, in clause 35, page 21, line 38, at end insert—'only in those circumstances in which a school has been designated as a "failing school" or when inspection has highlighted serious concerns about the leadership or governance of the school.'.Government amendments Nos. 31 and 32.
§ Mr. Willis
Before I speak to new clause 3, I must tell the House that the hon. Member for East Carmarthen and Dinefwr (Adam Price) wishes to speak to new clause 20. I understand that, with the leave of the House, he wishes to call a Division on that new clause.
New clause 3 is a small but important provision that would affect a significant number of members of the teaching staffs of schools that could be involved in a closure or merger. At present, if two community schools were closed to be merged as a single school, TUPE would not apply. Both sets of staff would be made redundant and would thus be assimilated in the new school, or have to apply for jobs there.
However, if one of the schools was voluntary aided, meaning that its staff were employed by the school's governors rather than by the local education authority, its staff would be covered by the TUPE regulations, while the group of staff in the controlled school would have no rights under those regulations. That is clearly unjust.
In fact, it is so unjust that a case was brought by the National Union of Teachers—Askew v. the London borough of Ealing—in the Court of Appeal. The judgment was simple: the judge said that what had happened was not unlawful under current legislation, but made clear the necessity for the Government to change the law to give all teachers—of whatever school—the same rights under TUPE.
968 I hope that the Government will give the new clause a positive response, as it aims to give all teachers—whether in community schools, voluntary-aided schools or any school maintained by the state—exactly the same rights as regards employment, redundancy and transfer of undertaking. [Interruption.] Although Conservative Members do not seem interested in the employment rights of individual teachers, I hope that they understand the importance of ensuring that all teaching staff have that protection.
When the Secretary of State was approached about a change to the law, there was an understanding that the Education Bill would include changes to the TUPE arrangements, thus affording protection for teachers in situations such as I described. I do not intend to put new clause 3 to a vote; I seek only an assurance from the Government that they will deal with the problem. If the new clause is flawed, they could table an amendment in another place before the Bill completes its passage.
§ Adam Price (East Carmarthen and Dinefwr)
I support new clause 20, tabled in my name and that of my hon. Friend the Member for Meirionnydd Nant Conwy (Mr. Llwyd) and other hon. Friends. It is not a wreckers' amendment but a reformers' amendment—very much in the spirit of the Bill. In its provisions for Wales, the Bill would allow Wales to follow its own course and to devise an education policy that meets its needs.
In previous debates, I have been generous about the Bill and indeed about education policy in Wales. When I described Wales as a left-wing teachers' utopia, I did not realise how prescient I had been until I read in the Western Mail this morning that the Minister for Education and Lifelong Learning in the Welsh Assembly, Jane Davidson, is to sign a memorandum of understandingcommitting Wales and Cuba to work together in the field of education".That is not so much a case of "They shall not pass" as of "They shall pass"—in ever higher numbers and with better grades.
Wales does well from the Bill. We welcomed many of its provisions, especially its sweeping enabling powers. There is one omission, however. The part of the Bill that deals with teachers' pay and conditions introduces a new framework for the determination of teachers' pay. We have tabled the new clause to close the lacuna in the devolution of education policy. All the clauses in that part of the Bill are devolved, but a veto is effectively being placed on the National Assembly for Wales as regards teachers' pay and conditions. I have yet to hear a convincing argument from Ministers as to why powers over pay and conditions should not be devolved.
§ Adam Price
I would understand the hon. Gentleman's argument if it were not for the fact that it is built into the logic of the Bill that a local, decentralised system of pay agreement is to be allowed. There will certainly be no uniformity within England. We are also well aware that devolution of the power over pay and conditions would 969 allow us to ratchet pay and conditions up. In Scotland, the McCrone Committee proposal that teachers' work loads should be cut considerably, their pay improved considerably and their conditions improved has been implemented in the Scottish teachers' agreement. That is why we need the devolution of that power—so that we in Wales can have the same standards as are being introduced in Scotland.
If the Government are not prepared to take that step in one go, they could make arrangements to allow greater consultation with the School Teachers' Review Body. Clause 115 gives the Secretary of State alone the power to appoint members of the STRB. Why is there not a seat for a representative appointed by the National Assembly for Wales? Clause 117 allows the Secretary of Stateto submit evidence and make representations".Why is the Assembly, which has its own distinctive education policy, not allowed to do so?
Clause 117 also lists relevant bodies that must be consulted by the STRB in coming to its conclusions. The list includes local education authorities and school governing bodies, but it does not include the National Assembly for Wales, which is responsible for education policy. It is disgraceful that the Assembly will be connected with the STRB only by virtue of the fact that the Secretary of State must consult the Assembly. There is no requirement on the Secretary of State to pass the views of the Assembly on to the STRB.
The STRB stated in its most recent report, which was published a few weeks ago, that it was well aware of the views in Wales. It states:We consider that it is still possible"—despite the views of teaching bodies in Wales—at present for one Review Body to make recommendations covering both England and Wales. In the future, much will depend upon the extent to which policies between England and Wales diverge".They have diverged massively in the Bill. Surely it is not the responsibility of the voluntary members of the STRB to decide whether Wales should have a separate review body; it is for this House to decide and that is why we tabled our new clause.
In Committee, the Under-Secretary of State for Wales pointed out that the Scottish situation is different because Scotland has a separate education system. In Wales, the curriculum, the inspection system, financing, governance and organisation of schools are all separate. The only thing that remains conjoined is teachers' pay and conditions.
The continued yoking together of pay and conditions in England and Wales does not make sense if we are serious about allowing a genuinely distinctive policy. The Government have said that they are in favour of allowing divergence and distinctiveness in education policy. If we are to have a fully comprehensive education policy in Wales, in both senses of the word, we need devolution of the power over pay and conditions as well.
§ Mr. Graham Brady (Altrincham and Sale, West)
As we continue with the pretence of scrutinising the Bill, I am keen that we should have an opportunity to vote on some of the later new clauses, which are of enormous importance to hon. Members on both sides of the House 970 and to many people outside, although apparently not to the Government, who are not prepared to give us the time to deal with them adequately. I shall therefore be brief in speaking to amendment No. 90.
Amendment. No 90 would limit the Secretary of State's power to interfere in staffing decisions in foundation and voluntary-aided schools. It is a simple amendment that would limit the Secretary of State's powers under the Bill to failing schools or schools where people are concerned about leadership. It would protect the status of foundation and voluntary-aided schools as the employers of their staff and their independence in taking those decisions. I want to hear the Minister's response, although I do not intend to press the new clause to a Division. I hope that we shall make rapid progress so that we can, at least briefly, deal with some of the other important new clauses.
§ The Minister for School Standards(Mr. Stephen Timms)
I wish to speak to Government amendment No. 31. Under clause 118, our intention is to define the term "school teacher" to ensure that all those working in schools who are currently legally covered by pay and conditions orders continue to be so covered. Without the amendment, it might be argued that head teachers would not be covered, so there is a need to include them separately, as under the amendment.
I also wish to speak to Government amendment No. 32. The hon. Members for Harrogate and Knaresborough (Mr. Willis) and for Yeovil (Mr. Laws) raised this matter in Committee. I undertook then to reflect on whether a specific requirement for consultation on orders made under clause 121(4)(a) should be incorporated into the primary legislation. Amendment No. 32 secures that, and I believe that it meets hon. Members' concerns in full, so I hope that they will welcome it.
New clause 3 contains some technical flaws, but the principle behind it is clear. It is intended to modify the Transfer of Undertakings (Protection of Employment) Regulations 1981, so that they apply to school staff involved in all transfers between maintained schools, whether or not a transfer between different employers is involved. TUPE should certainly cover transfers of undertaking between different employers, but it is unnecessary to go further than that to cover transfers or reorganisations between schools where the employer remains the same.
I wish to say two things to help the House and the hon. Member for Harrogate and Knaresborough. First, the current arrangements for dismissals in community, voluntary controlled and community special schools, which are set out in schedule 16 to the School Standards and Framework Act 1998, require employing local education authorities to terminate the contracts of employees where their governing bodies have made determinations that they should cease to work at their schools. That requirement ensures that the employing LEA does not have to consider, in line with normal employers' duties, alternative employment options elsewhere in the authority area, including inquiries with other schools or services, in attempting to avoid redundancies. I understand the concern about that arrangement.
The provisions of schedule 16 will be moved to staffing regulations under clause 34. We shall consult on the content of those regulations. In doing so, we shall give 971 attention to the drafting of the staff dismissal provision, so that governing bodies will be required to give LEAs notice of impending redundancies. We shall make it clear that LEAs will be subject to the same duties as they are for their other staff and have to consider alternatives to redundancies before resorting to terminating contracts. That will be a significant change in the regulations, which will, in part, meet the concern expressed by the hon. Member for Harrogate and Knaresborough.
Secondly, I will give further thought to the doubt that now surrounds some transfers of staff to and from maintained schools, following the Askew judgment. That judgment was clear, but its terms and explanation raised some questions. The Bill may already clarify the employment position sufficiently to ease the problem, but I am prepared to consider it further.
I must say to the hon. Member for Altrincham and Sale, West (Mr. Brady) that it was a great disappointment to Government members of the Committee that its Conservative members consistently declined to take up the extra time that we were keen to offer. Evening after evening, we offered additional time so that we could scrutinise the Bill further, but our offers were repeatedly declined.
Amendment No. 90 would leave foundation voluntary-aided and foundation special schools to their own devices in deciding their arrangements for staffing. I accept that it is a probing amendment, but it does not provide a sensible way to proceed on such an important issue. The staffing of schools accounts for the greatest cost by far of their funding and it is important that resources are managed and spent wisely in accordance with good practice and appropriate professional advice. The regulations and statutory guidance on staffing provisions, which the amendment seeks to disapply, will ensure consistency, a basic level of good practice and appropriate professional advice. Details of the likely content of the staffing regulations have already been provided to members of the Committee and they are now in the Library of the House.
It is important that all schools are subject to those arrangements to ensure that matters are handled appropriately and consistently. In particular, suddenly applying the arrangements in the way that the amendment envisages when schools fall into failure would not make much difference in the short term, and it is help in the short term that failing schools need most. I hope that the hon. Gentleman will accept that it is better to have arrangements that help schools avoid falling into failure in the first place. That is what we envisage.
My hon. Friend the Member for Wrexham (Ian Lucas) made an important point about new clause 20. It seeks to devolve teachers' pay and conditions to the National Assembly for Wales. We have not had any request for that to be done either from the Assembly or from the trade unions for the reasons that he gave.
§ Kevin Brennan
Does my hon. Friend not find it strange that the hon. Member for East Carmarthen and Dinefwr (Adam Price), who is a member of Plaid Cymru, should seek to introduce in this House something that the 972 National Assembly has not requested? Is that not a peculiar position to take for someone who is supposed to be in favour of devolution?
§ Mr. Timms
No, because I need to make progress.
The Committee debated the arrangements for teachers' pay in Wales on a probing amendment tabled by the hon. Member for Altrincham and Sale, West. I reiterate that the question of whether teachers' pay in Wales should be a devolved matter was settled in the devolution arrangements made under the Government of Wales Act 1998 and the subsequent transfer of functions orders. Responsibility for teachers' pay and conditions was not transferred to the Assembly.
The establishment of a new School Teachers' Review Body for Wales, which would probably need to be provided for if we were to accept new clause 20 in principle, might have a marginal impact on the work load of the existing STRB for England and Wales, but it would of course create a substantial new work load and increased running costs for the Assembly. No doubt, for that and other reasons, the Assembly has shown no desire to determine teachers' pay in Wales under its own pay machinery.
§ Adam Price
Will the Minister consider giving the Assembly the right to submit its representations to the STRB under the terms of the Bill?
§ Mr. Timms
The STRB currently consults the Secretary of State and that position was settled in the Government of Wales Act 1998. I do not think that there is any case—in fact, there has been no such call from the Assembly or the trade unions—for those arrangements to be changed.
On that basis, I hope that the hon. Member for Harrogate and Knaresborough will feel able to withdraw his new clause and that the House will accept the Government amendments.
§ Motion and clause, by leave, withdrawn.