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Schools: Statutory Instruments (Merits Committee Report)

My Lords, in moving this debate, I shall briefly set out why the committee felt an inquiry was desirable, what it found and what it recommended and then conclude with one or two thoughts about what might be some wider implications of its inquiry recommendations. Before launching into that, I shall thank the committee’s staff, especially Paul Bristow, for their excellent work. I mention Paul by name because he no longer works with the committee. I also thank the witnesses, including officials from the department, because they gave extremely good evidence, and the Minister, who engaged positively with the inquiry. Finally, I thank my fellow committee members who are quite outstanding in their diligence and commitment to our work. It is perhaps obvious why we had the inquiry. The committee had particularly noticed that the Government’s thrust to reduce the burdens of regulation on business had not been matched by a similar thrust to reduce the burdens of regulation on the public sector. It has marked that point for some time. The committee was also concerned about the high volume of secondary legislation that the Government impose on the world out there, particularly when it bears on one common point. Therefore, the committee was concerned to see the cumulative impact of secondary legislation on schools as a case in point. It chose schools because they seemed a good example and because the committee was aware that, in 2006-07, DCSF made over 100 new statutory instruments addressed to schools. We clearly wanted to inquire why there were so many statutory instruments; what the schools that were being regulated and instructed think about this; and, fundamentally, whether this welter of secondary legislation achieved its objectives, which goes to the heart of the committee’s terms of reference. As noble Lords would expect, and as is right, the Minister Jim Knight said that statutory instruments are a necessary instrument of policy and that the objective of improving schools and education is a goal that all of us would support. He also said that the department had been working to reduce the volume of legislation, but what we found did not fully support this. The department had carried out a survey on the effects of the New Relationship with Schools that started in 2004, and schools had noticed no diminution in the volume of regulation coming to them. The Implementation Review Unit, which gave excellent evidence to us, also told us that this welter of legislation being generated from the department was perhaps made worse because there was no single point in the department with an overview of the totality of what bore on schools and that made the sort of judgments that perhaps should be made as to whether cumulatively this would work or whether the cumulative consequences would be negative. The National Association of Head Teachers also said that the department made no attempt to take an holistic view of the legislative impact. Schools also said that the issue was wider than the department itself. They would have loved it if the department acted more as a gatekeeper to consider the other regulations generated by the Government that bore down on schools, and had an holistic view of whether the system could sensibly bear and positively respond to this level of innovation and instruction. So those who are being regulated cast strong doubts on whether this was an effective, efficient or sensible system. We as a committee therefore recommended addressing some of the immediate problems and having a common commencement date for the vast majority of regulations so that schools knew when most regulations were going to come in. We also recommended that there should be at least one full term’s notice that this was going to happen in order to give schools a proper lead-in time to prepare for it. If those two recommendations were taken, the notice period would in effect be from 1 April each year to the beginning of September. In our view, that would undoubtedly improve preparedness and, we hope, have a consequential benefit. The fact that the department had to bring in all those instruments on 1 April would, one would hope, make it more likely that someone in the department would ask whether the system could cope with the volume of this legislation and regulation and whether it was likely to have the beneficial effects desired or, to quote the BRE, whether more would be less. In other words, does the volume of activity reduce the likelihood of getting the outcomes that you want? The next major thing that we recommended—I will not cover all the points because my colleagues on the committee will cover many of them—was a fundamental review of the effects of the Government’s action. There is no point in public expenditure or government action unless the Government find out whether they work in practice. Why is that so? It is so because, unless you know whether your policies have worked, you do not know whether they are succeeding or failing. More fundamentally, unless you actually find out what works and what does not work, you have no feedback mechanism or learning system, and you therefore have a culture that does not learn what forms of action work and what do not. The Implementation Review Unit—a respectable body—said that the department is very poor at feedback and evaluation. Others said that there was little evidence of post-legislative impact assessment. Most of our committee built up a picture of a world in which too much was being attempted too frequently and with too little understanding of its impact. What, then, might be some of the wider lessons from this? I have mentioned the New Relationship with Schools, which I think was initiated by Charles Clarke in 2004 and launched in 2005. I had the pleasure of serving with him as a Minister at that point. It considered whether it was possible to cohere what the department did in order to reduce the burdens and to focus its actions on the most important. I have mentioned the evaluation by researchers afterwards that schools regrettably had not noticed a difference. The other conclusion—these are personal comments which the committee does not necessarily share—is that the model of change exhibited by the picture painted by the report is open to question and challenge. In essence, it starts with what may be a rather crude understanding of how people shift their behaviour both individually and institutionally. It is, in essence, a model that says: "We will issue a regulation and instruction and then the world will respond". That is often the case, although regrettably not always. It would be wonderful if it were; we would have much greater success in public service reform. It is a crude model of change because it does not necessarily recognise that, while an instrument on its own might get results, you have to look at what is happening to the system in total, and to consider with deep understanding how an organisation is coping and whether the cumulative impact will make change happen. Although I have the greatest respect for many civil servants, not many of them who are involved in making policy and legislation necessarily deeply understand the managerial realities of how a headmaster or headmistress of a busy school is actually coping. Therefore, the individual official who makes the secondary legislation often has a very small, blinkered view of what is most important: the statutory instrument itself. They make it without the wider picture of what else is happening and without a real understanding of the collective burdens on and challenges that face a head. As a consequence, the headmasters and headmistresses who gave their evidence to us did not see what the department was doing to them as beneficial; they often saw it as an impediment to progress. From a Government whom I support and applaud, that is deeply worrying—even though one may take that with a pinch of salt, because members of professions do moan—because it casts doubt on whether this is an effective system of promoting change. In essence, I suggest that the model whereby you keep on generating a whole number of small, specific input specifications and regulations is weak in its motivation and in developing effective accountability for outcomes. It would be marvellous if we got results only by specifying inputs, but there is not much evidence to support the idea that that, by itself, is an effective model of change. We were emboldened in this view when we looked across the pitch and saw what the Government were doing with academies. They had generated academies as a completely different model: bodies that are exempt from the vast majority of departmental statutory instruments and held to account through their governance arrangements for the outcomes that they generate. The question that we asked the Minister was this: if you believe that top-down regulation is burdensome and a potential impediment to success, and that you should hold academies to account through the results that they achieve, why do you not do that for other schools? The Minister’s response was in part that the Government have different governance and accountability models for academies compared with other schools. I do not think that all members of the committee were convinced that that was a sufficient answer. I therefore hope that the forthcoming White Paper will show that some of the messages that we and others have sent to the Government about how to improve the educational system and how to ensure that the educational standards of our children are taken deeply to heart. There are some signs that it might do that. The committee will not let go of post-implementation reviews. We believe fundamentally that unless departments find out whether their legislation has any effect, it is potentially a waste of money. Therefore, we have started another inquiry to look across the piece at whether government departments are following up in order to evaluate whether they got the effects from their legislative processes that they told Parliament they would get. Because it is a short report, I felt that this should be a short speech. I shall conclude by signalling that all of us know that our society, our country, faces the biggest fiscal challenge over the next decade that it has faced since the Second World War. It is not a short-term blip. When the economy has recovered, we will still face a fundamental fiscal deficit which will go on until 2017-18 at the very least. I declare my interest as the chairman and founder of the 2020 Public Services Trust, which is the major commission that we have launched into these issues. To most of us this requires a debate in civil society about what the central state does, how it behaves and, for those things that the central state continues to do, how it seeks to motivate the rest of civil society to respond to what it sees as its priorities and imperatives. For many of us, that must mean that the default model should shift from a belief that the best way is to have another initiative, to legislate and to create a new instruction in regulation. The default model should be the question: how do we motivate those who have to respond to this to be powerfully motivated to achieve the outcome rather than to respond to the specification of a set of inputs? Noble Lords will be relieved to know that I shall pause now. I beg to move.