Teachers' Performance Pay: High Court Judgment (Hansard, 17 July 2000)

§ The Minister of State, Department for Education and Employment (Baroness Blackstone)
My Lords, with the leave of the House, I shall now repeat in the form of a Statement a Private Notice Question on teachers' pay, which has been taken today in another place.
"Teachers' pay and conditions are set on a statutory basis by order after report by an independent review body, the School Teachers' Review Body, and consultation. In January of this year, the STRB recommended a new pay structure, including a performance threshold giving a £2,000 pay rise on 1st September 2000 and access to a higher pay scale. This will be put in place.
"As the House will know, the Government's plan to reform the teaching profession to make sure that good teachers are paid more was first published in a Green Paper in December 1998. The standards which teachers should meet for the threshold pay increase were first published in draft in February 1999 as part of consultation on the Green Paper, Teachers—meeting the challenge of change. Wide-ranging informal consultation over the following year led to formal consultation with the STRB's statutory consultees in February this year. The STRB itself was provided with early drafts of the standards as background to its review.
"As a result of action by the NUT, the High Court ruled on Friday 14th July that these standards were invalid because they should have been formally referred to the review body and set out in an order. The court also ruled that duties on school managers to carry out threshold assessment were unlawful because the consultation on the draft duties had been too short.
"My right honourable friend believed that it was not necessary to refer the standards to the review body because they were about standards of teaching, not pay structures and scales.
"The written judgment of the court is not available, but as soon as it is I will decide whether or not to appeal. But the judgment did not comment on the standards themselves and did not give rise to any fundamental need to review government policy on rewarding good teachers.
"The Secretary of State for Education and Employment has today written to head teachers advising them that the deadlines for threshold applications will be changed. We have already spoken to the STRB chair and will write to him formally today.
606 "The Government's pay reforms are the best opportunity teachers have had for a generation for a radical pay improvement. All the Government have asked is that teachers do a good job in return. We intend to press on with paying good teachers more money within the correct legal framework with as little delay as possible".
My Lords, that concludes the Statement.

§ Baroness Blatch
My Lords, the Statement which the noble Baroness has repeated, and which has been made in another place in response to a Private Notice Question, is deeply regrettable. First, the Secretary of State blames the National Union of Teachers for daring to challenge his handling of the PRP scheme. In a press release, the Secretary of State stated: The NUT need to ask their leadership why they have taken legal action". It did so because the Secretary of State had not heeded advice from so many about the process adopted for the introduction of PRP and because of the corners which were cut by the Secretary of State in order to implement a scheme, which is, as the noble Baroness and Secretary of State know, controversial.
Secondly, I turn to the role of civil servants and their advice to Ministers. To blame the civil servants, as Mr Blunkett has done, is disgraceful behaviour; civil servants are unable to defend themselves and must therefore be deemed guilty by the Secretary of State.
Speaking on a radio programme, the Secretary of State said that he cannot rely on his civil servants to advise him and therefore he was going to read the judgment himself and decide himself the next steps. Does he intend to take no advice at all? If he does intend to take advice, from where will he obtain it?
While PRP in principle is to be welcomed, the particular scheme, rushed through and now thwarted by the courts because of the Secretary of State, has not been thought through. It is excessively bureaucratic; it requires an army of external assessors; and it is supported by brain-numbing training which is an insult to professional teachers and governors. For example, many of those compelled to undertake training knew more than the trainers. They came away from the training very dissatisfied indeed.
Much of the work has been carried out in our schools, but will it now be aborted? Do the Government intend to appeal the judgment? The Minister said that they are waiting to read the judgment, but it would be helpful to know what is in the mind of the Secretary of State. Will schools be reimbursed for the time already spent on the bureaucratic process? Only today, I was in the presence of a head teacher who told me that when 68 teachers applied to go through the threshold at least two hours were spent on each application by that head teacher. Having undertaken all that work, what price is time now?
What is the delay likely to be for those teachers whose expectations have been raised by the Secretary of State only to be dashed by his arrogant disregard for the proper processes? Schools and teachers should not be made to pay the price for this fiasco.
607 The Statement indicates: My right honourable friend believes that it was not necessary to refer the standards to the review body because they are about standards of teaching, not pay structures and scales". They are about pay. Indeed, the DfEE's press release states: The Government's pay reforms are the best opportunity teachers have had for a generation to radically improve their pay". The whole PRP issue related to the standards necessary to trigger pay awards. The suggestion that the standards are not about pay, and to give that as an excuse for failing to follow the proper process, is unacceptable.
There is no doubt that the present situation is very frustrating for schools, teachers and governors. However, make no mistake about it, the blame lies with the Secretary of State.

§ Baroness Sharp of Guildford
My Lords, I thank the Minister for repeating the Statement. Like the noble Baroness, Lady Blatch, I believe that the Secretary of State must be naive if he thought that the proposals were about standards of teaching and not about pay structures and scales. After all that has been said in this House about performance-related pay, it was clear that they were about pay as well as about standards of teaching.
In many senses, this is a victory for parliamentary democracy as well as for the courts. As Mr Justice Jackson made clear, the Secretary of State, in imposing threshold standards for performance-related pay, bypassed the School Teachers' Review Body, Parliament and the Welsh Assembly. As the judge said, Parliament required that any significant contractual powers are subject to the scrutiny of an independent body; namely, the School Teachers' Review Body. The Secretary of State evaded that scrutiny. Furthermore, at the start the Welsh Assembly wanted to remove pupils' performance as a criterion for the teachers' assessment. It will now have its way unless the Secretary of State amends the existing legislation and introduces new statutes.
The real question is: why did not the DfEE and the Secretary of State scrutinise the court's decision in March, when it was decided that there were sufficient grounds for a judicial review with a view to withdrawing the flawed order relating to school teachers' pay, and undertake proper consultation rather than allow the review to drag on until July?
My second question returns to an issue raised many times by the Liberal Democrats. As the Minister knows well, we opposed the proposals for performance related pay because we did not believe that a school environment was appropriate for such a system. Essentially, teachers work as a team. The proposals would have introduced considerable extra administrative burdens on head teachers, who are already overloaded with bureaucracy, and would have required teacher to inform upon teacher with the risk of setting one member of staff against another within the team. We also opposed them because we felt, and said at the time, that four days of formal consultation was too short for so important a measure.
608 Therefore, my second question is: why did the Secretary of State not heed the voices not only of the Liberal Democrats but of over 70 Members of Parliament of all the main parties who signed an Early Day Motion in the other place calling on the Secretary of State to carry out proper consultation with teachers and to allow Parliament and the Welsh Assembly to debate such significant changes?
Lastly, I bring to your Lordships' attention the chaos that has now been caused. With less than a week to go before the end of term, teachers do not know where they are. I have many teacher friends who spent a whole weekend filling out the threshold forms. They do not know where they will stand when they return to school in September. Similarly, heads and governors have also had to spend a great deal of time deciding how to respond to them. I gather from the Statement that the matter is now on hold and that the Secretary of State is writing to the School Teachers' Review Body. However, how long will it be before teachers know whether they will receive their threshold payments?
Finally, I echo the questions posed by the noble Baroness, Lady Blatch. Why has the Secretary of State blamed officials when, in his summing up, the judge made it clear that, given the pace and pressure of changes imposed by the Secretary of State at the moment, mistakes were bound to occur?

§ Baroness Blackstone
My Lords, I begin by clearing up the last point made by the noble Baroness, Lady Sharp—a point raised also by the noble Baroness, Lady Blatch. I make it absolutely clear that the Secretary of State takes full responsibility for what happens. The noble Baroness, Lady Blatch, asked from whom the Secretary of State takes advice. He takes advice from many different quarters: from officials, legal advisers, special advisers and representatives of the teaching profession.
I am dismayed that the Liberal Democrats, and, I believe, the Conservative Party, too, do not accept the desirability of moving towards a pay system in which good teachers are rewarded fully for what they do by passing over a threshold and receiving an increase of £2,000. The noble Baroness wants to intervene, but perhaps I may say that the Opposition have attempted to block many of the proposals, have opposed them and have got into bed with the NUT over them.

§ Baroness Blatch
My Lords, I hope that the noble Baroness will read what I said. I said that PRP is welcome. We criticised the particular system and the bureaucratic nature of it. However, we have always said that PRP is welcome as a system of rewarding good work in classrooms.

§ Baroness Blackstone
My Lords, if the noble Baroness was so in favour of it, I wonder why she did not introduce it when she was in government. I suggest that that points to a small failure on her part and that of her party when in government.
609 Perhaps I may turn to some of the other questions raised. The noble Baroness, Lady Blatch, was critical of the training provided for head teachers in support of their work in carrying out assessments of teachers for the purpose of performance-related pay. At the May training events, 94 per cent of participants were satisfied or more than satisfied with the quality of the training they received, and an average of 91 per cent similarly were satisfied with the follow-up events. On the basis not of anecdote but of a proper sampling of the teachers concerned, that shows that they welcomed the training, were appreciative of it and considered it to be good.
The noble Baroness also asked whether the Government will appeal. As I implied in my response to the PNQ, the Government have not yet seen the written judgment and cannot make a decision until they have had the opportunity to do so.
The noble Baroness asked about the likely delay so far as concerns teachers. The Government regret the delay just as much as the noble Baroness. Until the issues raised by the court case have been resolved, it is impossible to say exactly how long the delay will be. However, I can say—and I believe that it will be reassuring to the many teachers who have applied to go over the threshold—that when decisions eventually are made about those who are successful, their pay will be backdated to 1st September.
The noble Baroness also asked whether the time spent on the applications and on their consideration by head teachers would be wasted. The Government very much hope that that will not be the case. If the threshold standards are not changed, we can proceed on the same basis. If the standards are changed, the Secretary of State will of course have to reconsider the whole position.
The noble Baroness, Lady Sharp, mentioned the National Assembly for Wales. Perhaps I may make it clear that this is not a devolved matter. Therefore, the National Assembly for Wales does not have a remit in this particular area, although the Welsh Ministers responsible are consulted. The Government do not consider that it should be a devolved matter. They believe that the threshold standards should be the same because there is a considerable amount of movement by teachers across the border between Wales and England. It would be undesirable for that movement to be in any way constrained.

§ Baroness Sharp of Guildford
My Lords, am I right in saying that if the Secretary of State were to use the 1986 Act, this would be a matter for devolution to Wales? It is a question of whether he uses the 1986 Act or the School Teachers' Pay and Conditions Act 1991 for appraisal. If he uses the latter, I gather that it would not be a matter for devolution. However, if he used the former, I believe that it would be.

§ Baroness Blackstone
My Lords, when Welsh devolution was debated and agreed in both Houses of Parliament, it was made absolutely clear that this would not be a devolved matter.
610 Perhaps I may return to the noble Baroness's point regarding the grounds for judicial review in March. When the NUT originally applied for judicial review, it was not in relation to the matter of threshold standards. That subject did not come into play until the last week of June. Therefore, the issue was introduced into the court case by the NUT only recently.
I believe that I have now answered the specific questions raised by both noble Baronesses. However, I make absolutely clear that my right honourable friend the Secretary of State will write to head teachers this week to set out exactly what they now need to do. Clearly the date by which they must complete the assessments will be put back. We have also made it clear that we shall provide them with further information and updates on the DfEE's website.

§ Lord Eden of Winton
My Lords, I declare an interest as the owner of a private school and, therefore, as an employer of teachers. Is it not unsatisfactory that, as was made clear by the Minister, everyone is now left in a state of limbo because no one knows what will happen next?
The Minister has said that the Secretary of State will write to head teachers this week. Does that mean that he will receive the written judgment before the end of the week? Will it be made widely available? If it is available in time for the Secretary of State to issue guidelines to the teaching profession and to head teachers, might it not have been possible to have got hold of it sooner and made it available to Parliament now?
The Minister has also said that the application deadline will be changed. Will she at least tell us the new date for applications?

§ Baroness Blackstone
My Lords, it is for the courts to make the written judgment available. I understand that it is likely to be available in the very near future. The Government will make a decision on whether to appeal by Thursday, which is the deadline. However, my right honourable friend the Secretary of State wishes to ensure that all head teachers receive a letter before the end of term, so it will have to go out tonight or tomorrow, which means that it will be impossible for him to give any details in that letter about his decision on an appeal. As I have said, head teachers will be updated through the department's website.

§ Lord Desai
My Lords, I welcome my noble friend's assurance about backdating the pay award when matters are settled. Over the weekend I met two teachers who intend to retire during the coming year. Their pension entitlement will be affected by whether they get the money. It would be helpful if it was made clear that their pensions will not be threatened.

§ Baroness Blackstone
My Lords, I reassure my noble friend that teachers who go through the appraisal 611 successfully will have their pay addition backdated to 1st September. Any teacher who is likely to retire will not suffer in any way in terms of their pension.

§ Lord Kimball
My Lords, under what rules does the Secretary of State continue in office? Surely he has disqualified himself by all normal standards, having publicly declared the advice that he received in confidence from his civil servants.

§ Baroness Blackstone
My Lords, I utterly refute that suggestion. My right honourable friend the Secretary of State for Education and Employment has been one of the most successful holders of that office for many years. He has pushed through a remarkable range of reforms to improve standards in our schools and to ensure that lifelong learning becomes a reality. As I said earlier, he accepts full responsibility for what has happened.

§ Baroness Carnegy of Lour
My Lords, the Minister has said that the pay will be backdated to 1st September. Can she assure us that the Secretary of State has sound advice that that will be legal, whatever the outcome? Teachers would like to know.

§ Baroness Blackstone
My Lords, yes, I can give the noble Baroness that assurance.

§ Baroness Seccombe
My Lords, will the Minister answer the question asked by my noble friend Lady Blatch about whether schools will be repaid for all the work that they have done on the process?

§ Baroness Blackstone
My Lords, the work is part of the responsibility of head teachers. There is no need to repay them for what that they have done, because they have accepted that appraisal is part of their job and have been doing it for some years. In no sense would it be appropriate to repay schools. Moreover, we hope that most of the work that they have done will not be affected, because we hope that the standards will be accepted. There was a great deal of consultation about them and they have largely been accepted in the teaching profession.