Education and Inspections Bill

I wish to speak to Amendments Nos. 172, 173 and 174 concerning our objections to some aspects of the role of the adjudicator. First, on banding, I would like to remind the House that we have already made some difference to the Bill. We are grateful that the other evening the Minister accepted our amendment to require decisions on banding to be left to governing bodies. That is a step in the right direction rather than banding being decided by local authorities. Amendment No. 172 probes the thinking behind the broad powers granted to the adjudicator under Clause 43. The amendment leaves out the key words, "““whether or not he would be required to do so for the purpose of determining the objection””." This is a broad power. It would mean that a person could make an objection on frivolous or vexatious grounds, and that this would then give the adjudicator the power to investigate every aspect of a school’s admissions arrangements and make changes. That could happen even where nobody objected to the offending part of the arrangements. New subsection (5B) of Section 90 of the School Standards and Framework Act 1998 also refers to a decision of the adjudicator or Secretary of State on whether, "““it would be appropriate for changes to be made to the admission arrangements, whether in the light of his decision on the objection or otherwise””." Amendment No. 173 removes this part of the clause. Again, we see no reason why potentially frivolous or vexatious complaints justify the complete review ofa school’s admission arrangements. Where the adjudicator considers the decision of an admissions authority, it should be limited to the grounds of appeal listed in the original complaint. There should also be a right of appeal from the adjudicator. Amendment No. 174 would allow appeals where a party to the proceedings before the adjudicator is dissatisfied on a point of law. The adjudicator will have to state a case for the decision of the High Court. In another place, amendments were tabled to give a right of appeal to the Secretary of State. We accept that to introduce the Secretary of State into the process would risk politicising decisions that must be made. We therefore propose the High Court, which, I am sure we all agree, is sufficiently independent to avoid this. We have heard much from the Government about how we do not need an appeal from the adjudicator because he is already an appeal body. However, this is not strictly the case. In the judgment given in November 1999 in the case of Regina v The Schools Adjudicator ex parte Metropolitan Borough of Wirral, Mr Justice Latham ruled that: "““The provisions of the Act that I have already cited make it plain that the Schools Adjudicator has what is, in effect, an original jurisdiction to determine the objection””." This was restated in the decision in the case of The Queen on the Application of Metropolitan Borough of Wirral v The Chief Schools Adjudicator, given on 14 December 2000. Mr Justice Ouseley ruled that, "““it is plain that the adjudicator is exercising an original jurisdiction as to the appropriateness of admission arrangements. He is not reviewing a local education authority's decision, though obviously what they determine and why is very material””." I admit that, when the decision-maker is a local authority, the analogy of an appeal works well. The local authority makes its decision and then various aggrieved parties can refer the matter to the adjudicator. For example, where a local authority proposes the discontinuance of a certain situation, the problem arises because we are moving away from a system in which local authorities make most of the important decisions relating to schools in an area, towards one of independent, self-governing trust and foundation schools making their own decisions. In such circumstances, a right of appeal, however limited, is essential. It is important that, when the adjudicator overturns the decision of a governing body on its admission arrangements, the governing body can challenge this decision relatively inexpensively and swiftly. Similarly, local authorities will be able to refer proposals to the adjudicator where a school decides to acquire a trust. In such circumstances, the adjudicator will be able to overturn the decision of the governing body, which will have no statutory right of appeal. At present, the only recourse for schools which object to the adjudicator’s decision is judicial review. As noble Lords will know, this is an extremely blunt, expensive and untimely tool. Some local authorities can afford to challenge the decisions of the adjudicator through judicial review, but schools and parents cannot. Many will decide that they have more important things to spend money on than this lengthy process. It cannot be right that bad decisions go unchallenged simply because the aggrieved party cannot afford it. The Newport Free Grammar School in Essex had its admissions policy overturned and, even though the governing body was dissatisfied, it simply could not afford judicial review on grounds of cost. The school’s website stated: "““The only recourse the school could have is to go to judicial review, costing in the region of £50,000—way outside the school's resources””." It went on to state: "““The Government seems to want to promote self-governing schools, yet is not prepared to allow Governors to govern without interference from LEAs and quangos like the Schools Adjudicator””." There are further areas where some right of appeal from the adjudicator may be important. In a number of cases, the adjudicator will be given decision-making powers directly, without the case first being decided by the local authority. For example, where a local authority is given the right to propose a new community school, the adjudicator makes the initial decision. Similarly, the Bill transfers from the Secretary of State responsibility for various decisions relating to non-playing-field land, involving disputes between foundation or voluntary schools and the local authority over the sale of land and the division of any proceeds; decisions over land transfer disputes when schools change category; and disputes over land required by a local authority for a new school. Here again, the adjudicator is given the initial decision-making power. If the adjudicator is an appeal body, as the Government say, where is the appeal in these cases? It is essential that the adjudicator process has the confidence of parents and governors. A right of appeal may help to ensure that fewer people leave the process dissatisfied. Where the adjudicator is simply implementing the law, an appeal will demonstrate this clearly and remove any risk that the adjudicator is viewed as overly powerful and unaccountable.