Peter Smith explains why the Government's proposals on early retirement funding must be challenged in the High Court. The Government's decision to change the way in which premature retirement is to be funded from April 1 this year has provoked unprecedented anger. Any Conservative MP who checked the haul of Christmas cards from teachers and lecturers last month could probably have totalled the messages of peace and goodwill on the fingers of a mangled hand - and still had digits to spare.
I use the phrase "the Government's decision" deliberately. Though the proposals, announced last October, are out for consultation until the end of next week, if you look up "proposal" in the Government's dictionary, the meaning you will find is "fixed intention". If you turn to "consultation" you will read "the process by which decisions already made are shamelessly presented as the outcome of genuine discussion of the options with the parties concerned".
There may be nothing new (or even unique to this particular administration) in that deplorable debasement of democratic decision-making. What in this case is novel, however, is the Government's determination to conduct even its own consultation procedures with such obvious indifference to the outcome. Just as exceptional is its apparent readiness to treat Parliament itself with so blatant a degree of contempt.
However hollow the consultation exercise may turn out, are teachers right to feel bitter about the substance of the proposed changes? Should MPs - or anyone else - care about yet another attempt to push through measures with little or no debate, and ahead of actual parliamentary decision?
The Government's chutzpah may be in inverse proportion to the size of its majority, but what, after all, is so wrong with legislation by fait accompli if the policy is right?
And who, the Government may ask, is going to get worked up over teachers' pensions in the election run-up anyway? Not Daily Mail readers for sure - and if the tabloids don't bite, why should politicians of any party rise to the bait?
The Government's case is sleekly presented. It argues that the costs of premature retirement to the Teachers' Superannuation Scheme are running at high levels. If unchecked, they will mount yet further, placing the scheme under increasing strain, particularly once the costs of annual index-linked increases are charged to it rather than borne by the Treasury as hitherto.
It is therefore right, says the Government, that those teachers' employers who grant premature retirement should meet much of the cost themselves. It is inequitable that they should, in effect, be subsidised by all employers through a higher general contribution rate. The Government points to the loss to the schools and colleges of experienced teachers retiring early at the very time that it is proving difficult to meet recruitment targets, particularly in the secondary sector. Now that the education service has been downsized, why should a lever, once a useful - even necessary - management tool, remain so easily available?
Hinting in deafening sotto voce that the present arrangements are being abused, the Government suggests that too many teachers have come to regard early retirement as an employee entitlement rather than an employer discretion - and that too many employers have tacitly and irresponsibly allowed the expectation to flourish.
To dismiss these arguments out of hand would be glib. It is quite clear that the scheme's costs cannot simply be allowed to escalate unrestrictedly. There are indeed growing problems in recruiting able teachers. It is equally plain that early retirement for teachers was never intended to be available on demand, nor could it be without radical redesign of the scheme itself.
Why then are teachers and lecturers complaining that the Government's proposals are inadequate, the timescale for implementing them unreasonable, and its plans for forestalling employers' damage limitation at the very edge of what is lawful, if not beyond? Are they justified? Or is their objection a solely self-interested gripe - always a handy political accusation - that the Government, having spotted a Colditz-style escape tunnel, is filling it fast with quick-drying cement, increasing the wattage of the perimeter spotlights, and making life tough for the remaining inmates?
I believe that teachers are absolutely right to be angry, entirely justified in protesting, and wholly entitled to do so loudly.
At the very core of their anger is bitterness over a Government which claims a sustained track record of educational progress, but which has presided over a diaspora of teachers who are indeed able, but all too often thoroughly disillusioned. The more important question is not just how many teachers have gone early and gladly, but why they wanted to. If the answer is that, for far too many, job satisfaction has fallen victim to crushing workloads, to job insecurity and to stress, then the real challenge to the Government is to cure the disease, not cauterise the symptoms. Seeking to solve recruitment problems by forcibly detaining those who wish to quit is no recipe for raising morale. It is more a master plan for creating an ageing rump of the cynical and the disaffected.
But even if all that were true but tough luck, the Government's decision to introduce the changes on April 1 (All Fools Day, ironically) is unbelieveably crass, not least in its hopes for re-election. It drives a coach and horses through planning decisions schools will have made for the 199697 academic year, as they struggle to achieve yet further efficiency savings (for which read offload "expensive" teachers and try your luck in the cheapest hiring fair you can find). Even those independent schools with the ability to pass the hat round to fee-paying parents are complaining loudly at the timing.
As for the FE sector, many corporations, facing the almost impossible task of hitting expansion targets with ever-decreasing funding levels, will find themselves in crisis.
What price the vaunted benefits of self- management, if what they really boil down to is that schools and colleges can manage themselves any way they like - given that they obediently dance to the Government's tune and metronome setting?
And if they won't do so willingly, then they will be forced, for just before Christmas the Department for Education and Employment issued what was tantamount to an ultimatum. It made clear that any employer offering premature retirement on grounds of efficiency after October 22 1996 and before March 31 1997 would be making a false declaration if: * the teacher were to be re-employed in any capacity, full-time or part-time, immediately or shortly after the end of the employment; * the result of the teacher's departure would be that a class was left untaught during the next term; * the employer had to resort to temporary expedients such as supply teaching or amalgamation with another class.
Employers were told that they should formally confirm to Teachers' Pensions that none of these circumstances would apply for any early retirements taking effect during the period. The game plan is clear. It is not to control the number of early retirements, but to make them all but impossible either to fund or award.
This action is nothing less than an outrageous attempt to put the frighteners on employers, to force them into disrupting arrangements into which they and teachers had entered or were about to enter into in total good faith, and on the basis of earlier Teachers' Pensions advice on re-employment following retirement. If they decline to do so, they will be branded as cheats and liars.
This unilateral attempt by the Government to take upon itself, without notice, the power to decide what an employer may judge to be efficient and determine how quickly the efficiency is to be achieved is almost certainly unlawful. It definitely deserves urgent challenge in the High Court, and that is precisely what ATL has told Mrs Shephard to expect unless she herself makes out the legal case for her decision.
The challenge may fail, but even if Goliath had trodden David into the mud and choked him on his slingshot, the PR advantage would not have switched to the giant. MPs of all parties would do well to contemplate that, for teachers and lecturers will be watching closely how they react when the matter comes before Parliament.
Peter Smith is the general secretary of the Association of Teachers and Lecturers.