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Schools: Statutory Instruments (Merits Committee Report)

My Lords, I, too, am a member of the Merits of Statutory Instruments Committee and endorse the comments already made about its chairmanship under my noble friend Lord Filkin. Other noble Lords, my noble friend in particular, have given a very thorough résumé of the findings in the committee’s report and the reasons for the recommendations, as well as commenting on the Government’s response. In view of that, I should like to confine my observations to a few specific areas. Most of us by nature prefer to be left alone, to get on with things without what we might regard as time-consuming interference from elsewhere, particularly so when that involves changes in practices and procedures which we ourselves have not necessarily considered essential. Unless a statutory instrument is implementing the details of a change in practice, procedure or policy which is universally accepted as desirable by those directly affected, it will always run the risk of being branded as unnecessary bureaucracy, difficult to understand, an additional workload burden and another reason why people have less time to do the job that they are paid for and want to do. There are always likely to be more people ready to voice criticism of the impact of statutory instruments than there are to sing their praises. To that extent, I suspect that virtually every government department that produces any significant number of statutory instruments is on a loser when it comes to the views and perceptions of those on whom the instruments have the most impact. However, the committee’s report on the cumulative impact of statutory instruments on schools showed that, as far as the Department for Children, Schools and Families is concerned, steps could be taken to address the concerns and frustrations over the department’s approach to, and voluminous use of, statutory instruments which were expressed to us by those who gave oral and written evidence. The Government’s response to the committee’s recommendations is helpful in that it indicates that a number of the recommendations will be implemented in varying degrees, which at least suggests that the department recognises that the issues identified by the committee have substance and weight. As has already been said, the Government set up a panel of schools practitioners in 2003-04 called the Implementation Review Unit to offer advice on the relationship between the department and schools. Part of its remit is to review the impact of the Government’s education policy pre- and post-implementation, with a view to minimising and reducing burdens in schools. The committee took evidence from the Implementation Review Unit, and it is worth noting that it believes that what it describes as "stakeholder engagement" is better than it has ever been. However, it and other witnesses consider that the system is overregulated and that what they feel is the focus on processes should shift towards establishing accountability for the delivery of key outcomes—in other words, rather less in regulation and guidance for schools on systems, procedures and processes that have to be followed and implemented, and rather greater emphasis on accountability for the outcomes that have to be delivered, with more flexibility for those running the schools over the means and processes that they decide to use to achieve those outcomes. Such an approach would almost certainly reduce the need for so many statutory instruments, and perhaps the department should give full consideration to whether statutory instruments are the best way to deliver the key outcomes being sought. In his evidence to the committee, the Minister referred to the light-touch regulatory framework for academies. The committee did not recommend, as has been reported in some quarters, that the same approach should be extended to all maintained schools. It certainly called for the department seriously to consider a less heavy-handed approach, since that was the thrust of much of the evidence that we heard. The committee then said, however, that if the department considered that the light-touch regulatory framework for academies was appropriate and successful, that lighter touch should be extended to all maintained schools. It is for the department to make the judgment on whether the light-touch regulatory framework for academies is appropriate and successful. In his response to the committee’s recommendation, the Minister referred to academies and an evaluation strategy and stated that, ""judgment cannot be made until we have a longer and more detailed evaluation of the programme"" Such caution is perhaps understandable in the light of an article in Private Eye magazine, based on figures provided to the Library in the other place, indicating that more than two-thirds of privately sponsored academy schools have not received the money pledged to them by their sponsors. There was not unanimity of view from those who submitted evidence over the merits of the lighter-touch regulation for academies. The Advisory Centre for Education said that the "light touch" afforded to academies often results in a deficit of accountability and a poor deal for children and parents, especially vulnerable ones. Its view was that all academies should be brought fully within the ambit of national education law in the same way as maintained schools. The committee’s report refers to evidence we received that, to those on the receiving end, new statutory instruments, or amendments to existing instruments, seem to be introduced far too frequently, and with insufficient understanding of their impact. There is surely a need for the department to ensure that it carries out, as others have already commented, a proper post-implementation review of all statutory instruments to see whether they have achieved their objectives, whether they were necessary in the first place and what lessons can be applied to the implementation of future instruments. Such reviews would also pick up the issue of the need for a proper assessment of the cumulative impact of statutory instruments on schools, since it appeared that this issue of the cumulative impact was not being as fully considered as it should be by the department, even though it was clearly a source of concern to many of our witnesses. Nor was it just the issue of the number of statutory instruments themselves that was raised with us, but the volume of guidance coming from the department and other education initiatives. We were told, as the noble and learned Baroness, Lady Butler-Sloss, said, that the guidance did not always make it clear whether it was a requirement or whether it was optional. Sometimes the local education authority would put its own interpretation on the status and meaning of the guidance. While some evidence we received suggested that stakeholder engagement was better than it has ever been, it was also clear that those on the front line who had to implement legislation and associated statutory instruments as well as different education initiatives felt that more could be done to involve them in policy development at an earlier stage. The department needs to look at this point, as many of the concerns and frustrations we heard might well be significantly reduced if those most affected felt that their points had been taken into account before statutory instruments were issued, guidance sent out or new initiatives embarked on. As the Advisory Centre for Education commented, if the law is set out clearly that tends to make things easier, not more difficult. The same applies to guidance and clarity over what is meant and what is expected. I welcome the Government's response to the committee's report, which did not seek to dismiss the thrust of what the report said and provided a real expectation that specific measures will address some of the recommendations made. There will always be some differences of view on key issues of policy, but it can only be in the interests of all concerned, not least the pupils themselves, if those involved at all levels in developing and implementing policy can work together as far as possible to achieve ways in which to move forward that minimise or eliminate any potential adverse consequences or difficulties for those at the front line. I hope that the department, and in particular Ministers, since they should be the drivers of change, will reflect further on the points made in the report and on the contributions to this debate, because the present practices and procedures, and the culture that they embody, have to change.