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National Assembly for Wales (Legislative Competence) (Education) Order 2010

Volume 718: debated on Thursday 25 March 2010

Considered in Grand Committee

Moved by

That the Grand Committee do report to the House that it has considered the National Assembly for Wales (Legislative Competence) (Education) Order 2010.

Relevant document: 10th Report from the Joint Committee on Statutory Instruments.

My Lords, this legislative competence order has already been approved in the other place and by the National Assembly for Wales. Good governance is at the heart of our schools and is central to providing the high-quality education that we want for our children. Good governance underpins and supports the work that schools do by setting high standards and targets and by creating an environment conducive to learning. This LCO forms part of the Welsh Assembly Government’s legislative programme for 2009-10. It will complement the wide-ranging competence in the education field already enjoyed by the Assembly. The school governance model in place is more than 20 years old. The legislation covering school governance does not have the flexibility to allow the Assembly Government to respond to the changes and challenges emerging from the development of policies in Wales.

The order that we are debating will allow the Assembly to pass measures to strengthen and improve the governance of local authority maintained schools. For example, it will allow the Assembly to legislate to enhance the training and support available to school governors. It will enable legislation to bring about improved collaboration and shared good practice. It will also allow for the possibility of establishing bodies such as school companies or other educational bodies to provide services to schools and to exercise education functions on behalf of local authorities.

The order inserts three matters into Field 5—Education and training—in Part 1 of Schedule 5 to the Government of Wales Act 2006. Matter 5.2A relates to the conduct and governance of schools maintained by local authorities. Matter 5.2B relates to securing collaboration between persons or bodies with functions in relation to schools maintained by a local authority. Matter 5.2C enables persons or bodies with functions related to maintained schools to establish a body such as a company which could carry out activities related to education and training, and could exercise education functions on behalf of local authorities.

I thank the Constitution Committee of this House and the Welsh Affairs Committee in the other place for undertaking scrutiny of the proposed legislative competence order. The order has also benefited from scrutiny by a committee of the Assembly. The Welsh Affairs Committee considered the scope of the proposed LCO in relation to staffing and finance and noted that it could be clearer in this respect. A new Annexe A has been inserted into the Explanatory Memorandum to explain what is within the scope of the LCO in respect of staffing and finance. The committee also recommended that consideration be given to amending Matter 5.2A with regard to staffing and finance. The Welsh Assembly Government carefully considered this recommendation, but concluded that any amendment to Matter 5.2A was unnecessary and could cause confusion, especially when compared with the competence conferred by Matter 5.12 in respect of further education. However, the explanatory note to the LCO has been amended to make it clear that an Assembly measure made as a result of this LCO could not, for example, amend the provisions of the schoolteachers’ pay and conditions document. This matter exercised the minds of those who expressed anxiety on this score.

In relation to Matter 5.2C, the committee recommended that the wording be reviewed to ensure that local authority functions other than education and training are not within scope. The matter has been amended to make clear that bodies can be established to carry out only the education functions of local authorities in addition to carrying out education and training activities generally. This order is about education.

References to the education functions of the local authority have also been inserted in anticipation of an order being made under Section 162 of the Education and Inspections Act 2006. This provision enables the Secretary of State to repeal references to a “local education authority” and replace it with “local authority” in England and Wales. The Constitution Committee highlighted the need to consider this issue and we have included a transitory reference in the LCO in relation to such an order. This LCO has been improved as a result of intensive pre-legislative scrutiny and complements the Assembly’s existing legislative competence in education. Accordingly, I commend it to the Committee and I beg to move.

My Lords, once again I thank the noble Lord, Lord Davies, for his explanation of this legislative competence order. The purpose of the proposed LCO is to confer on the Welsh Assembly additional legislative competence in education, primarily relating to the governance of maintained schools. The Assembly already has extensive competence in education. This proposed LCO, however, would extend the competence further to relate to the governance of maintained schools in Wales.

The role of the governing body in maintaining schools is, of course, of crucial importance. The Explanatory Memorandum tells us that studies of school governance have been commissioned by the Assembly Government which conclude that the effectiveness of governing bodies varies and that the training being made available to governors is uneven, with weaknesses in consistency of approach, availability and take-up.

The three matters proposed to be inserted into Field 5 of Part 1 of Schedule 5 to the Government of Wales Act 2006 would provide the Assembly with competence to legislate with respect to the conduct and governance of maintained schools. There are a few issues which I wish to raise with the Minister and I hope that he will address them in his closing remarks.

First, I am rather concerned to see that the Assembly could, pursuant to the powers proposed to be devolved, pass legislation not only in relation to the creation of bodies responsible for school governance, but also their abolition. Can the Minister say whether this means that boards of governors could be abolished altogether? It is clear from the Explanatory Memorandum that the merger of governing bodies of different schools is already contemplated. However, the role of governors is crucial in relation to public accountability. It would be extremely worrying if such accountability were to be removed by their abolition.

Secondly, the Explanatory Memorandum makes clear that changes to school finance and school staffing are not within the competence proposed to be conferred by the LCO. It states that:

“If new models for governance arrangements were created as a result of the LCO, there would be some linked changes to the persons or bodies exercising functions relating to staffing and finance, but the LCO does not confer competence to change the substantive nature of those functions”.

Is that a weakness in the proposed order? If new governance arrangements are created, would the Assembly not need the flexibility to deal with the consequent necessary changes relating to staffing and finance?

Thirdly, Matter 5.2C confers competence on the Assembly to create new bodies for the carrying out of activities relating to education or training and exercising education functions on behalf of local authorities. This is a very wide power indeed. Although the Explanatory Memorandum gives a fairly narrow example of what the Assembly might do pursuant to the power—creating an educational body to provide services to schools and FEIs—the power is manifestly much broader in its scope. Is the Minister able to give other examples of actions that might be available to the Assembly under the terms of this matter and which are presently being contemplated by the Assembly Government?

These questions are important and I look forward to hearing the Minister’s response.

I do not have any direct interests to declare, but my mother was a teacher with Breconshire County Council for 25 years, and I am a former school governor of a primary school. We know that the devolution of education in Wales has been a long-standing fact. Over time, we have refined the functions of education in Wales to the benefit of all our young people. I agree with the noble Lord, Lord Glentoran, when he alluded to the fact that sometimes there are, shall we say, differences in the quality of provision in some places, but that is due largely to the legacy of the decline in heavy industry and a lot of poverty in the south Wales valleys. On the other hand, the area I come from offers excellent education provision but for a declining number of children.

That is a problem in its own right in that the closure of some rural schools is an issue which is exercising people. Flexibility is therefore needed about decisions on whether governing bodies are amalgamated or even, in some instances, primary head teachers have to be responsible for more than one school. That certainly is the case at the primary school I once went to, which now has a shared head teacher. The flexibility provided in the LCO is important in order to ensure that proper provision is made.

Reference is made to Matter 5.2A, which covers the:

“Conduct and governance of schools maintained by local authorities, including … property, rights and liabilities”.

This is important because the condition of some school buildings has deteriorated and often emergency repairs have to be carried out. However, many of the areas of concern have been covered by the noble Lord, Lord Glentoran, and I have no wish to repeat them. What I would say about this LCO is that it is particularly important because it enables and encourages collaboration and co-operation between schools maintained by local authorities as well as with outside bodies such as voluntary organisations whose expertise can only enhance the quality of a child’s learning experience.

I end my remarks by saying that where I come from, there is an active local history society. In the Easter holidays, we are bringing together people who grew up during the Second World War and who attended the primary school. I am one of those people, and I will describe what it was like to be in that school during the war. Two of my fellow pupils at the time will do the same. Exemplars are very good and there are plenty of local communities in which co-operation and collaboration is extremely important.

My Lords, the noble Lord, Lord Glentoran, declared his interest when we debated the first order, and I am glad to see that the noble Lord, Lord Livsey, declared his interest as we debated the third. He will appreciate the envy with which I respond, having been born in south Wales but never having had the benefit of attending a primary school there. He has the advantage over me—but not with regard to this particular order, I hasten to add, as I hope that I am adequately briefed to answer the questions that noble Lords have asked. It will be recognised that the measure relates to school governance—an important but limited issue. Therefore, I will give clear responses to the points about the extent to which the LCO confers competence.

The noble Lord, Lord Glentoran, asked one of those questions to which there is only a yes or no answer. The answer to the question of whether the order confers competence to abolish school governors is yes. The Explanatory Memorandum explains this. However, the order declares a competence but does not announce a policy—far from it. Whether the Assembly would ever put forward such a measure is, under the terms of the order, for the Assembly to decide. Of course, as will be readily anticipated, the Assembly places great emphasis on the contribution that school governing bodies make to Welsh education. Far from it having a policy intention to abolish them, it seeks ways to ensure that they fulfil their functions more effectively. There is no doubt—and I do not think that this is a party-political view: my Government have done some enhancement in recent years, but I pay due respect to the Opposition, and to the Liberal party, as well—that we all recognise that the contribution of the community to local schools, as expressed by the governing bodies, is of very great importance.

There was a time when a great deal of English and Welsh education was directed from the centre, and it could be thought that governing bodies were often implementing and rubber-stamping positions that had been adopted. That was always something of a caricature, because the real authority to which governing bodies related was their local authority, not central government. In so far as there was ever a failing, it was that too many circulars on these issues would appear from departments of state. However, in recent times, greater devolving of power to governing bodies has enhanced the participating role of local communities, which has been very much to the benefit of education.

So I will answer the noble Lord, Lord Glentoran, factually and accurately. The order does provide for this power. However, it is no statement of policy—far from it. There is no question of the National Assembly taking that view. This is about legislative competence over the long term. Quite properly, the Assembly wants to ensure that it is equipped with powers so that any future Assembly, a long time from now, will be able to carry out the democratic decisions that the Assembly makes. That is why it wants this competence in the framework.

I turn to whether the exclusion of school staffing and finance from the scope of the order is a weakness. In my introduction, I emphasised that they are excluded, but I do not think it is a weakness of the order. After all, the issue concerns school governance and, as the Explanatory Notes make clear, the order certainly permits measures that would move responsibility for staffing and/or governance to or from school governing bodies. It permits this but provides sufficient flexibility should new governance arrangements mean that the functions need to be reordered. My answer to the noble Lord, Lord Glentoran, is that under this order flexibility is sought for the potential change. The staffing and finance functions are outside the scope of the order but there is flexibility for new governance arrangements, which means that in due course functions could be reordered.

I again emphasise that the noble Lord is asking a question about the Assembly's intent in seeking this legislative competence. It is not to provide for school governors to be directly involved in the payment of staff or directly involved in finance matters, because local authorities in Wales have an important role and the Welsh Assembly Government have pretty clear views on their relationships with local authorities. On the previous order I indicated how much the Assembly Government are concerned to safeguard and preserve their relationships with local authorities. As the noble Lord will be only too well aware, the Assembly Government cannot function effectively if they do not create the right relationship with local authorities. Therefore, on those issues, there is no intention of giving school governing bodies that competence at present.

As for the examples of the bodies that might be created through the order, I emphasise that the competence is quite broad. It is deliberately so in order to permit the National Assembly to pass measures that could create bodies that it thinks are necessary. The bodies might provide services and support for schools and school governors as well as governor training; we can all think of organisations that are concerned with enhancing the training of governors and the extent to which this has already produced dividends. There is no doubt at all that for a very long time people joined school governing bodies and were expected to learn on the job, or that they often came along with perspectives which were pretty hidebound. It is now widely appreciated that members who serve on school governing bodies have a very significant responsibility to their local community and that training is important. That is the kind of body that we think the Assembly might reasonably want to develop. However, it is for the Assembly to make up its mind about what kind of bodies should be established. It has the breadth for that, and that is to be commended. I therefore commend the order to the Committee.

Motion agreed.