Academies Bill [HL]
(13 years, 10 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Phillips of Sudbury
“( ) If the Academy arrangements are entered into other than in relation to a maintained school converted into an Academy, the Secretary of State must be satisfied that the new Academy meets a public need in the area concerned and will not cause undue detriment to any neighbouring school.”
Lord Phillips of Sudbury
My Lords, this is a broadly good Bill, but in boldly extending academy status from underachieving schools to any school, we must surely ensure that the Bill does not inadvertently undermine its avowed purpose,
“to raise school standards for all”.
Michael Gove in the other place and the noble Lord, Lord Hill, in his accomplished Second Reading speech here emphasised that primary focus of helping the educationally underprivileged. Mr Gove put it this way:
“We believe that the function of the state is to promote equity … the power of the state should be deployed vigorously to help the vulnerable and the voiceless, those who lack resources and connections, and those who are poor materially and excluded socially”.—[Official Report, Commons, 2/6/10; col. 463.]
My amendment is to ensure just that—that the coalition walks that talk and exemplifies its values. It addresses the risk that the free schools—the brand new academies—do not cause undue detriment to existing neighbouring schools. I accept that that would never be the purpose of any group promoting such a new school. However, sometimes any of us—indeed, all of us at times—can so concentrate on our own children and our own back yard that we overlook the needs of others. That is a particular danger when social considerations intrude, as they too often do in this country, vis-à-vis education. At Second Reading I gave an example from my own part of Suffolk of the proposal to convert a feeder middle school into a secondary academy school. That would devastatingly undermine the really good school into which it feeds by the consequent impact on its entry numbers and all that that would mean for finances, staffing, social balance and, ultimately, morale.
Britain is still a sorely disfigured country—disfigured by acute inequalities of life chances. That underlines, among other things, our social and law and order problems, and leads to huge financial and moral setbacks. It is against this backdrop that I very much hope that the Government—my Government—will accept this constructive amendment, which will provide an essential but practical safeguard against the unintended consequences of the Bill as it stands.
Lord Adonis
The noble Lord is a stickler in this House, and rightly so, for precision in language and comprehensibility in legislation. In his amendment he uses some very general terms. He talks about the Secretary of State being satisfied that an academy meets “a public need” and that it,
“will not cause undue detriment”.
Will he set out somewhere for us how he defines “public need” and “undue detriment”?
Lord Phillips of Sudbury
My Lords, the noble Lord made much the same point before the dinner break. If he looks back over some of the legislation that he introduced, he will find that it is peppered with considerations and language of that kind. You cannot legislate without using general terms. The amendment that I have put forward has a long-stop protection in that it is capable of being judicially reviewed. If the noble Lord were to suggest that that is the very evil against which more precise language would guard, I would have to tell him, first, that more precise language cannot be used in a situation such as this and, secondly, that to give a controlled guided discretion to the Secretary of State is a device used in every Bill in every month of every year in this place. I am confident that it will work in this case. You have only to look at Clause 1(6), which refers to,
“pupils who are wholly or mainly drawn from the area in which the school is situated”.
You could argue till the cows came home about what “mainly” means and what,
“the area in which the school is situated”
means. As I say, at times legislative language must, and can only, resort to generalities. I think that the amendment I have produced is capable of being used practically and to effect. The alternative would be to have nothing in the Bill, which I suggest would be the worst of all worlds.
Given the backdrop that I have described, I very much hope that the Government will accept this amendment, which does not apply, of course—I have specifically excluded it from doing so—to maintained schools converting to parallel academies, which will be by far the larger number. However, there would still be a significant number of new free academies, which must surely also be expected to serve the higher purpose of educational justice for all, not just their own pupils. A big society, surely, must be an equitable society, particularly towards its most needy. My amendment may not be perfect, but something like it must be in the Bill if we want to end what Mr Gove called in his Statement today a “segregated and stratified” school system. I beg to move.
Baroness Royall of Blaisdon
My Lords, Amendments 191 and 114 are intended to probe the Government’s view of the long term of this reform and speak to concerns expressed elsewhere in this debate. In answer to questions about the Statement on free schools, I think that the Minister spoke of pilots, although I may be wrong. The amendments to which I speak ask the Government to pilot the Bill’s approach in limited areas, or initially to cap the numbers of these new academies so that the effect on nearby schools can be considered in the light of experience. It seems reasonable to me that if the effects that have been forecast of the disruption and funding shortfalls for vital services transpire, we will know that proceeding further along this road would be an error. Other amendments in this grouping discuss the need for openness and the consideration of the wider effects of this policy when proceeding with changes of status on this scale.
Amendments 119 and 177 relate to the criteria for acceptance of an application for conversion to an academy. Crucially, they relate to the need to consider the local impact of the change in the round and to consider the impact on community cohesion of the change to academy status. These constitute very real concerns. The amendment to which the noble Lord, Lord Phillips, spoke also addresses the local impact of these schools. I support the amendment. Questions need to be answered in relation to the example that he gave of a school in Suffolk.
Amendment 76A seeks to introduce a requirement for academies introducing new or significant sixth-form provision to consult existing providers of sixth-form courses, including sixth-form colleges and FE colleges in the area. It also seeks to ensure that academies are part of regional and subregional planning groups for 16 to 19 provision. This will ensure that there is no duplication of existing provision within an area and avoid inefficiency.
Local authorities currently act as commissioners for courses for 16 to 19 year-olds funded by the Young People’s Learning Agency. They engage with all providers across local authority boundaries to ensure that courses are provided which meet the needs of students and provide the best value to taxpayers. We would need to be assured that that process would continue with academies, because there needs to be an overview.
Amendment 92A seeks to introduce a fair funding element to 16 to 19 year-old provision in academies to ensure that 16 to 19 year-olds are not treated more favourably than existing providers of education for 16 to 19 year-olds. Currently, if an academy provides or introduces new 16 to 19 year-olds’ education, the funding is top-sliced from that which is given via the YPLA to other providers in the area. This funding is provided on the basis that all the places offered by the academy will be filled.
That is not the case for other providers, which are funded on the basis of the places that they have filled in previous years. It can also create an anomalous situation whereby, if places are not taken up at an academy, but the students instead choose to go to a sixth-form college, it is still the academy rather than the college that receives this funding for those places. That creates a financial incentive for academies to offer courses for which there is no or little new demand. I am not an expert in these areas, but when I was alerted to these specific issues, it seemed that these were the very issues that we should be probing and seeking answers on from the Minister.
These amendments are not designed to shackle the Secretary of State and they do not prevent him continuing with his plan. They merely seek to assure those who have perhaps been unnerved by the speed with which he is pursuing an end to any form of community accountability for schools.
Lord Bew
My Lords, I shall address some of the issues raised by the noble Lord, Lord Phillips of Sudbury, in his Amendment 4. Much of this is an issue of context. I was struck by the example of the case in Sudbury, which he gave in his speech at Second Reading. It is of concern that what we are doing with this new second phase of the academies project will leave certain schools and communities behind.
However, I want to suggest an angle of vision on this which I hope will be helpful in a small way to the Committee. If you look at a very traditional elitist system such as that which prevails in Northern Ireland—the grammar school system—which is different markedly from the system that is being discussed, although there is a small grammar school element to it, you will see that the results achieved at A-level and GCE are by far the best in the United Kingdom. At the bottom, the results are not so good—but nor are they now so divergent from those in England. Girls are actually doing better in Northern Ireland. Boys in Northern Ireland are doing worse than in England. However, those results tell you something: the way that our system has evolved over a generation or more is that we now accept that Northern Ireland will for ever lead the academic attainment lists at the highest level in the United Kingdom unless there are changes in policies. They tell you that at the bottom level this elitist system is not as bad in relation to England as we once thought it was. It is actually very close indeed. It is bad to be at the bottom level in England and in Northern Ireland.
The point I am trying to make is that the Northern Irish grammar school system, for all its many joys, was not formed in a political culture whereby a Minister for Education talked, as he was talking today, about using the state as a weapon for equity. In other words, the context is enormously important. It is important that the context is right when we discuss these questions and that the policy of the Government is directed towards greater equality of opportunity, which seems to be, as the noble Lord, Lord Phillips, conceded, where the Minister is coming from. He may not be quite the Marxist-Leninist that the noble Lord, Lord Greaves, talked about, but none the less that seems to be the approach. The status quo is leaving people behind. We already have a segregated system. The status quo is already having negative effects, and the noble Lord, Lord Phillips, whose point about unintended consequences I accept, is rightly concerned that they will become more marked as side effects of this new system.
Baroness Walmsley
My Lords, if I may—I have some amendments in this group. I should like to speak to Amendments 98, 136 and 177. I also intend to speak to Amendment 137 along with Amendment 98, as they go together. I apologise that with all the toing and froing with the groupings this morning, I did not notice that Amendment 137 had not been included in this group. However, I believe that I am able to speak to it all the same.
The purpose of Amendments 98 and 137 is to probe the application of the school governance procedures regulations 2003 to a resolution by the school governors to apply for academy status. The current regulations provide for special procedures for important governing body decisions about the future of a school—particularly ones such as this, which would lead to a decision by the local authority to discontinue supporting the school. The special procedures currently include a requirement that the decision cannot be delegated to a committee or individual, and the chair cannot direct that a period of notice shorter than seven days be given for a governing body meeting. Indeed, in certain cases, a second governing body meeting must be held within 28 days to confirm the original decision.
Therefore, can the Minister confirm that a decision to apply for academy status cannot be delegated to an individual governor or even a small committee of governors? Will the regulations require the local authority or parents to be informed of the date when the governing body proposes to make a decision? Should not the regulations be amended to this end if they do not already do so?
Amendment 136 is a different way of dealing with the same matter. Clause 5(9) disapplies current legislation. Conversely, if we remove subsection (9), as Amendment 136 does, the current situation regarding consultation, safeguards and time periods and so on regarding who can make the decisions remains.
Amendment 177 would insert a new clause that would extend to academies a current duty on the governing bodies of maintained schools in England to promote community cohesion in the discharging of their functions. The noble Baroness, Lady Royall, touched on this in the earlier debate on consultation. I well recall our debates during the passage of the Education and Inspections Act 2006, which introduced a duty on all maintained schools in England to promote community cohesion and on Ofsted to report on the contributions that they make in this area. Both these duties have now commenced.
Governing bodies of existing new Labour academies are not subject to the same duty to promote community cohesion as applies to maintained schools, despite our protestations, as I recall, when the Bill went through your Lordships’ House, yet from September 2008 their contribution to community cohesion has been reported on by Ofsted. I think it is vital that the new academies are also required to promote community cohesion, especially where they are located in areas where the community is very diverse. This is particularly important given the concerns that academies may increase social division and inequality, rather than reduce them, which of course is the intention of the programme. That is not how we want academies to be. They should be part of, and serve, the local community.
On the question of new 16 to 19 providers, mentioned by the noble Baroness on the opposition Benches, I think that if an academy extends the age range which it intends to serve beyond that which it had when it first applied to be an academy, there may very well be a case for having to go back to the Secretary of State to renegotiate the terms of the academy agreement. Can the Minister let me know whether that is the Government’s intention? It would be a major change in the academy’s provision and the original consultations would no longer be legitimate.
Lord Whitty
My Lords, I, too, have tabled amendments in this group—Amendments 116, 117, 119 and 129. Since this is the first time that I have spoken on this Bill, I welcome and congratulate the Minister on his position and the way in which he has hitherto dealt with the Bill. However, I cannot give the same welcome to the Bill itself. He needs to know that I have fairly fundamental objections to it, which may appear from time to time. It may have a rougher ride as we go forward.
It is true that I also had some reservations about the previous Government’s academies programme, contrary to the position of the Front Bench and other colleagues. However, it was very different—it was different in execution, although some would say that it was not that different in ambition. In execution, the Labour Government, with their fewer than 300 academies, recognised that there were failing schools, or at least schools that were underperforming in educational terms, and that there were areas of social deprivation, which was detrimentally affecting educational attainment. The Government used the academies as a way of compensating or intervening at the extreme end of special measures. That I can understand. In a sense, it was a comment on the failure of local authorities and the governing bodies that central government had to take them over. In general, I believe that the education of a community’s children ought to be the responsibility of the local authority elected for that community. It is only in very specialised and specialist cases that you would override that.
That is a political and an educational principle. It is an educational principle for reasons to which the noble Lord, Lord Phillips, has just referred. A change in the status and the relative resources and attention given to one school will have a knock-on effect on other schools. Sometimes it might be beneficial, but it will undoubtedly have a knock-on effect.
The record on Labour academies is mixed. Some have been very successful; some have improved, though it could be argued that they could have been improved by less drastic interventions; and some have failed or nearly failed. The case is not yet fully proven. To take away from local authorities the responsibility for educating their populations, which they have had for well over a century, is a very drastic move. In this short Bill we are changing the provision of education in this country.
This depends on initiatives being taken by the school and on the attitude of the Secretary of State to the application of the school. However, the ambition has been clearly laid out by the Minister and the Secretary of State. They want a large number of schools to opt out of local authority oversight. I say “oversight” and not “control” because local authorities have not managed schools for many years. They have supported schools and given them administrative support, help in specialist matters and special needs, and help in many other areas, but they have not managed the schools in the way which is sometimes implied by the criticism of the current system.
The Bill is taking a big step to remove the relationship between schools and the local authority. I appreciate that I am not going to be able to persuade the Government or the coalition—or at least most of the coalition—that this is the wrong way to go. But if we are to go down that road, it is essential to reassert the role of the local authority. We had a debate just before the break about consultation. I take some of the points from my noble friend Lord Adonis and others that to prescribe exact forms of consultation in primary legislation can lead you down difficult paths and that perhaps it is better covered by a code, guidance or, certainly, practice by the Secretary of State and those who are promoting academies and free schools.
The one bit of consultation that I do not believe you can escape is consultation with the local authority. The local authority might in some cases agree that it would be a good thing to have an academy. It would certainly have views on it and it would certainly have views that are informed by the impact on the rest of education in the area of its oversight. My first amendment is my ideal. Amendment 116 says that the local authorities should be consulted and should agree the proposals.
I appreciate that that is fairly close to cloud-cuckoo land, given the Government's intentions. In any case, if there was a disagreement between the local authorities and the Secretary of State, you would have to build in an arbitration process. I have therefore given the Government an alternative, which simply states that there is an obligation to consult the local authority.
Personally, I think that if that is not inserted in some form into the Bill, it will be greatly flawed. I suspect that it will make for a difficult ride in another place if local authorities are not written in, so I therefore strongly advise the Government that if they are to continue to go down that road, they ought at least to recognise the special role of local authorities in that respect.
I also take the point made by the noble and learned Lord, Lord Mackay, before the break, but perhaps the obligation to consult ought to be not on the party proposing the school but on the Secretary of State him or herself. At the end of the day, the Secretary of State will have to make the judgment and explain to Parliament whether an effective consultation has taken place, so I place the responsibility not on the proposers but on the Secretary of State. That makes sense.
My Amendment 119 goes further to state—in a sense, with the same motivation as the noble Lord, Lord Phillips—that there should be an assessment of the effect of taking a prospective academy out of local authority oversight on the rest of the educational provision in the area. Where it differs from the intention of the noble Lord, Lord Phillips, and probably therefore avoids the objection of my noble friend Lord Adonis, is that it simply states that there should be an assessment. That assessment, or at least its conclusions, should probably be available publicly—although the amendment does not state that—but it still leaves the final judgment to the Secretary of State, whereas the amendments of the noble Lord, Lord Phillips, would prescribe something that is difficult to define, as my noble friend said. Nevertheless, I think that the noble Lord and I are both on the same page here: before we move to approve an academy, an assessment needs to have been made as to the effect that will have on the total educational provision in the area.
I hope that the Government take some notice of the amendment. Personally, I find it very difficult that in the name of removing the burdens of red tape from head teachers and governing bodies, we move from a system of local authority oversight to one of centralised funding, centrally regulated. The red tape which has undoubtedly been imposed on the teaching profession by successive Governments over the past two or three decades has largely emanated from central government and their agencies, not from local government. The relationship with local government has been, by and large, constructive. We ought to maintain that. Even if we are going for change which some local authorities may approve of, there must be a vital role for local authorities in that process.
My final amendment simply gives some flexibility on timescale, so I will not go into it in great detail. The key point here is that local authorities must be present under the Bill to be consulted, engaged and involved, reflecting the impact of a decision on one school on the totality of education in their area.
Lord Greaves
I have one amendment in this group, Amendment 106—which, as I previously explained, should have been in the previous group, but it has ended up here, so I will speak to it here.
It was originally intended as an addition to the amendments on consultation in the previous group proposed and spoken to by my noble friend Lady Walmsley and the noble Baronesses, Lady Royall and Lady Howe of Idlicote. I thought that rather than tabling three amendments adding on to them, I would table just one to discuss alongside them. I failed miserably, because we have to discuss it now.
The noble Lord, Lord Whitty, said that he thought that he would not be able single-handedly to persuade the coalition that this Bill should be scrapped and that we should start again. It would not take a lot to persuade me, but I do not think that I could persuade the coalition either. Even the combined forces of the noble Lord and I would not succeed in that. Therefore, we have the Bill that we have, and we have to do what the House of Lords traditionally does very well: look at the Bill, not challenge it in principle but look at how it will work, whether it will work successfully and the effect that it will have on everything else around it. That is what we are doing, and what we have to do.
Baroness Morgan of Drefelin
I am very interested in the noble Lord’s view on this. Does he think there is a material difference between what a community might have to say about a primary school and about a secondary school? Is there a difference between those institutions in terms of the community engagement and collective responsibility?
Lord Greaves
I think there is a real difference between primary schools and secondary schools for other reasons, but the relationship between a school and the community in which it is situated varies hugely between schools. Some schools cut themselves off from the community, unfortunately, a tendency that has increased in recent years because of the pressures put on the schools, but other schools look outwards. I do not think there is necessarily a difference between a primary school and a secondary school, although primary schools—by their very nature, because they take in very young children and bring mothers in and so on—are often more closely involved in the community than some secondary schools. However, I do not think there is necessarily a direct relationship between that, and I know secondary schools that are heavily involved in the community.
The parish council in a village, the town council in a town and the district council can all legitimately have a say. I am not saying that they should have a right of veto; I am saying that these are community institutions and if a community is to have a proper debate, no matter how quickly, everyone in that community has a right to it.
There are two principles of general consultation. They help with the difficulties, which the noble Lord, Lord Adonis, identified, of being too prescriptive about whom you consult or of trying to be prescriptive but vague at the same time and perhaps leaving things open to legal challenge. First, you must publish what you are proposing for general discussion so that anyone can pick up information about it and take part in the discussion, and you must publish the responses. That is proposed new subsection (1A) in my amendment. Secondly, once you have the responses, whether from parents, teachers, the parish council or just a group of interested people, you must obviously consider them and decide whether you want to allow them to influence your decision. If, after the consultation, you decide to send your application to the Secretary of State, you send a summary of the responses or the responses themselves to the Secretary of State alongside your application so that someone who is looking at the application can consider them at the same time. Those are the two principles of genuine public consultation and debate.
The argument against such a consultation might be that it will delay the process, but so long as you have a pretty strict timetable and people are fairly rigorous and efficient with it, it does not have to delay the process very much. I think there is also a worry on the part of the Government that if there is too much general public debate about a particular proposal, it will encourage people to decide not to go for it. They might say that it is a bit controversial and hang back a bit. However, given the scale of the interest which the Government assure us there is in these things, whether it is a free school or a conversion—they say that 1,800 schools at least have now asked for more details—the Government and the department cannot possibly deal with that very quickly and will have to go ahead with far fewer, so I do not think that the argument about putting people off carries any weight whatever.
I support the coalition Government, but everything that people have said and everything that they have published so far—in the original agreement and in the coalition document Our Programme for Government—talks about more public involvement, more consultation and more involvement of citizens. We are slowly learning what the big society means, but if it does not mean genuine consultation on something that is as important to a local community as the future of its school, what on earth does it mean? Something needs to be in the Bill about consultation, and it needs to involve not just particular interest groups in the school but the wider community.
The Earl of Listowel
My Lords, I support Amendments 114 and 191. I particularly support Amendment 191, because it asks the Government to pilot the academy schools and I think that a conservative approach to this is appropriate. This is so significant to our children’s lives. I recognise that this is an enabling Bill, but we expect many schools to buy into this programme. This is a huge experiment and it really does behove us to act in a conservative and considered way. Piloting a scheme, as the amendment suggests, would be a good step forward.
I have previously raised with the Minister my concerns about not only the most vulnerable children in the system but also the workforce and how these schools might cream off the best teachers and head teachers from the schools around them. I think that there is a consensus that the quality of teachers and head teachers makes the most difference to the education of children and young people.
To give examples from other areas, in the prison system we now have a mixed economy of private and public prisons. Private prisons are often accused of paying huge sums of money for the best executives from the public sector. The public sector trains the best prison officers, who get creamed off by private companies. They are also accused of putting junior officers in place who are underdeveloped and undersupported, and they quickly move on. I do not know whether that is a fair accusation but, from the statistics, the turnover of junior officers in private prisons is very much higher than in public prisons. There were all sorts of benefits to introducing a mixed economy in terms of breaking down inflexible practices, but I hope that the illustration shows that there is some cause for concern.
As regards childcare, I was speaking to the manager of a voluntary nursery which is not far from your Lordships’ House. She said, “We are very keen on training our childcare workers. They work for their national vocational qualification level 3 in childcare and as soon as we train them up they move to the local authority system where they get better pensions, benefits and job security”.
I have already mentioned independent social worker practices. I heard the Minister’s response to that. It is super that such new models can be very attractive to people coming into social work or teaching. They see themselves gaining the autonomy they want to run their own businesses. There is great enthusiasm for that. However, Paul Fallon, who was director of social services at Barnet, reduced the level of social work vacancies in his local authority from 30 per cent to 3 per cent in three years—I hope that I have the figures right, because they sound a bit too neat. He was well respected and was asked by the Government to be part of a committee advising on independent social work practices. His main concern was that these social work practices would cream off all the best social workers from thereabouts and that there would not be the continuity of provision essential in dealing with these children to ensure that they get back to their families.
This is a bit like a game of chess and the devil is always very good at enticing us with an attractive knight, a rook or even a queen. But we have to look further down the game. When we are dealing with something as serious as this, we have to look a number of moves ahead to the end game. I am concerned about this matter. I wish to learn more. I appreciate the Minister’s serious endeavours to reassure me and others.
I also recall the right-to-buy policy, which had many benefits for many people. Unfortunately, the need for councils to redevelop public provision—the local authority homes that were being sold off—was overlooked in that policy. I am sorry to say that in many areas this has condemned some families to sharing a kitchen or a bathroom with five other families. Many families have to live in awful conditions in poor-quality private accommodation because sufficient thought was not given to the overall impact of that policy. This is a good proposal from the opposition Benches and I look forward to the Minister’s reply.
Lord Adonis
My Lords, I am sorry to return to the amendment tabled by the noble Lord, Lord Phillips, but I believe that it is fundamentally unworkable. It is not a question of judgments having to be made about terminology in legislation; these judgments have to be made the whole time. The problem with his amendment is that there are deeply competing interpretations within the education world as to what the words he has used in his amendment would mean. Having been on the receiving end of representations about the setting up of new schools, including schools in the county from which the noble Lord hails, I can tell him that he is setting up a procedure that will see every proposal for a new school that does not have near universal local support end up in the courts being bitterly contested because of the imprecision of language that he proposes to impose on the Bill.
Let me take the two specific terms he uses: that a new academy must meet “public need” before the Secretary of State is allowed to agree to it and that it should not,
“cause undue detriment to any neighbouring school”.
King Lear got this right more than 400 years ago when he said:
“O, reason not the need! Our basest beggars
Are in the poorest thing superfluous”.
But when it comes to defining need in respect of new school places, two fundamentally competing views are held. One is that “need” should be defined as a numerical need for additional places, while another and essentially different interpretation is that “need” should be based on parental demand for a new type of place or, as alas is too often the case in local authorities with a large number of failing schools, for better places, which is what has driven so much of the academy movement. It is not that there have not been enough school places in a locality, but that they have not been of a quality that parents in good conscience wish their children to take up.
The noble Lord owes it to the Committee to be frank and direct about which concept of need he has in mind. Is need to be defined simply as a numerical need for places or is it to be defined in terms of appreciable parental demand for a type of place—it could be for Montessori-type schools with a different educational philosophy—or better quality places than those on offer in the existing schools?
Lord Phillips of Sudbury
I am grateful to the noble Lord for giving way, but he has rather challenged me. The answer to his question is this. My amendment leaves a discretion with the Secretary of State, and it will be for the Secretary of State to decide on the two or more interpretations of need. In the same way, it will be up to the Secretary of State to come to conclusions about undue detriment. If, through guidance, the Secretary of State gives a further indication of how the two tests have been interpreted, all the better. But as the noble Lord is well aware, the only basis on which this could be challenged in a court—and challenges to ministerial discretions, which are widespread, are extremely rare—would be that the Secretary of State had acted in a way that no reasonable person could have acted.
Lord Adonis
My Lords, I do believe that that is a straight cop-out. Parliament has to be clear on what it means. There are two competing notions of need here and Parliament needs to state, before it charges the Secretary of State with these responsibilities, which one it means. As for judicial reviews and legal challenges being rare, there was one point when I was in the job now being done by the noble Lord, Lord Hill, when I was barely out of the High Court and the Court of Appeal on challenges to academies, most of them with support from the National Union of Teachers and a good number with support, one way or another, from bodies associated with local authorities. So Parliament needs to be clear on what it means.
We come then to “undue detriment”. Again, there are two competing views of what this is. It could be taken to mean making another school or schools totally non viable or it could be taken to mean that it would have a serious, definable or appreciable impact on another school or schools. Again, there is a fundamental difference between those two concepts of detriment—whether the detriment causes a school to become non viable or whether it simply has an impact or an appreciable impact. Again, Parliament needs to be clear which of the two it means.
This goes to the central point about school improvements as well. The noble Lord’s amendment says that the Secretary of State may not allow a new academy to be established if it causes undue detriment. I have to say that in many cases it is the dealing with the undue detriment that should be the duty of the Secretary of State or the responsible local authority using the huge array of school improvement powers available, including those that the Government of whom I was a member provided over 13 years. The idea that parents should not be able to access new or additional school places in areas where the schools are not providing good quality places simply because the provision of those places will cause detriment to other schools fundamentally ignores the interests of parents and their right to have a decent quality school to send their children to. If there is not such a decent quality school and someone is prepared to do something substantive about it, they should be applauded and not put through the legal rigmarole that the noble Lord is proposing, which will work fundamentally against the interests of parents, particularly in places where schools are not of a high enough quality. The imprecision of the language, where it is not clear what the definitions of essential terms such as “detriment” and “need” will be, will ensure that the only people who will gain from this are the lawyers, who will make huge fees while this is fought out in the courts over many years.
Lord Baker of Dorking
My Lords, I support entirely what the noble Lord, Lord Adonis, has said. It is a pity that he is not saying it from the Labour Front Bench because he is absolutely right.
On listening to the debates both before and after dinner, I was struck by how similar they were to the debates on the Education Reform Act 1988, when I decided to establish two groups of independent schools—city technology colleges, which were totally independent of government and financed by business people, and grant maintained schools, which were almost independent of government—which we had to get through as a result of an elaborate electoral process which in those days your Lordships tried to hinder, restrict and limit. I was told at the time that these schools would destroy the education system, that the detriment to schools would be overwhelming and that ordinary secondary schools would be undermined and destroyed. That is not what has happened.
In 1988 the Labour Party objected so strongly that it said it would abolish them all; that it would destroy them as soon as it came into power. That did not happen. The noble Lord, Lord Whitty, was a member of a Government who actually expanded and developed them at the expense of local education authorities, I would remind him. He was a senior member of a Government and a Minister of State who approved all this. The CTCs were not voted down. They became beacon schools which other local schools tried to emulate.
In the early days of city technology colleges, the local education authorities opposed them so strongly that they told the other local authority schools for which they were responsible to have nothing to do with them; not to play games with them. The noble Lord, Lord Phillips, will remember; he was in the House in those days. The local authorities ostracised them; they said that they were the cuckoos in the nest that would destroy them. Now they tell them to co-operate with them; they are trying to imitate them and to reach the standards that they have established. That is an enormous change, as it was with the grant-maintained schools. I shall allow the noble Lord, Lord Whitty, to intervene but I want him to listen to me for a moment. Again, the Labour Party spent 10 years totally opposing the grant-maintained schools and then it reinvented them and called them trust schools.
However, let us forget all of that. I do not want to make party points tonight. This provision for alternative types of schools is good for the whole education system; it drives up standards. As the noble Lord, Lord Adonis, said, if parents are dissatisfied with a local school and the local authority has tried to improve it—it has thrown resources at it and changed the head three times in two years and done everything it can—and it still has not happened, what does it do? Just let it go on to the detriment of all the pupils? I shall give way to the noble Lord, Lord Whitty, in a moment, because he is being stirred, but I shall give way to the noble Lord, Lord Phillips, first.
Lord Phillips of Sudbury
I am intrigued. Is the noble Lord, Lord Baker, saying that the creation of a new school cannot severely damage an existing good school? If he acknowledges that it can, is he saying that nothing should be done about it?
Lord Baker of Dorking
Very often, if there is a good local school there will not be the creation of another school. If you have got a very good primary school that is satisfying the demands of the parents and children, you will not get another group of parents and teachers wishing to create a new primary school.
The noble Lord does not know how difficult it is to start a school. For the past three years I have been starting new schools—at first with Lord Dearing—the new university technical colleges. It is a hard row to hoe because many people do not want it. These are colleges for 14 to 18 year-olds—which is disruptive for an 11-to-18 system for a start—specialising in technological and academic subjects. When Ron and I started, local authorities were not very interested. They did not like them for all the reasons that the noble Lord gave: they hurt good schools. Now I find that local authorities are coming to my little team, saying, “We’d like one of those, please”. They have seen that it is a new model that they like; it is better. I do not believe for a moment that a good school is threatened—that is rubbish, if I may say so to the noble Lord. He should not get up; he has had his go. Only bad schools are threatened; that is the problem. I can tell the noble Lord that it takes enormous effort to get a school started—to get parents together, to get teachers together. Meetings do not happen. Who is the champion? Can they bring it together? Then we have a divisive curriculum. Then they have to find support and make it viable economically: they have to find a primary school for 150 pupils and a secondary school for 500 to 600 pupils. That is an enormous hurdle. All the hurdles that Members of this Committee have tried to put in the way of the new schools over the past few hours is nothing compared to the task that committed groups will have to take on. That is the reality of life. It requires enormous effort and a tremendous act of corporate activity. We should not try to hobble and hinder that activity too much.
I prefer working with local education authorities. For the schools that I am establishing, we talk first to the local education authorities. If you are creating 14-to-19 colleges, they have to accommodate the 11-to-14 pupils. They also have to accept that it is a very different body in their school organisation. But now I am finding that local authorities like it. It is novel; it is different; and it will be effective. It will be effective, because in every comprehensive at age 12, 13 and 14, you have a vast number of disengaged pupils who do not want to continue in their local comprehensive school. We are providing an alternative which the state system has not yet provided. It provided it back in the 1950s as technical schools, but they failed because they were skill by snobbery. That is why we get a university to sponsor each of our colleges.
I therefore say to Members who are anxious about all this disrupting our education system that the new academies, to the extent that they will exist in the future, will improve our education system. They will improve the standards; they will get the commitment of local people, which will be very energetic. Even the Liberal Party knows how difficult it is to get local people to do anything—even to vote for them occasionally. So let us imagine how difficult it is to get local people committed to establishing a new school. That is why the Government are trying to make it as easy as possible. We should not make it too difficult for them to do so. This is a very imaginative proposal by the Government and it should be welcomed. It will be welcomed first by the Liberal Party—obviously; it will be welcomed reluctantly by the Labour Party, just as it came to welcome the city technology colleges and the grant-maintained schools. It is only a question of time. It is still in the mode of fighting the last election. When it starts fighting the next election, it will begin to realise that what we are saying is really rather attractive, responsive to the needs of people and beneficial to the education of our country. I cannot wait for the day.
Lord Lucas
My Lords, I do enjoy this coalition politics, but I think that my noble friends on my left are looking too much at institutions and too little at parents. They should think in terms instead of the interests of parents and the pupils. They are taking too static a view of the schools system. Schools are changing and jostling for places all the time. In a town with three or four secondary schools, the least popular may suddenly get a good new headmistress who makes a great difference and the school becomes popular again. Pupils flow to her away from the other schools. This is a naturally dynamic system which can easily absorb other levels of change. As the noble Lord, Lord Adonis, said, the Government have lots of levers to deal with any problems that develop as a result of change—we will come to that when we talk about inspections and how we watch the way which the system is going. We are talking about a change which results in parents being happier, pupils doing better and provision being much more closely aligned with the best interests of pupils and parents. Yes, there may be a few bumps in the road, but if we are careful as a Government, we will make sure that they do not hurt people. That must be the way we should go, rather than sticking with what we all agree is a system with a very large proportion of unsatisfactory, or at least sub-optimal, provision.
Lord Whitty
I owe the noble Lord, Lord Baker, at least a brief response since he took us back not only to 1988 but to the 1950s. I read his article about technical colleges and I have some sympathy with it because, for the record, I am strongly in favour of local authorities. But that does not mean that I am against choice and diversity of provision. I do not think that the local authority has to provide everything or that everybody who works at the local authority school has to be employed by the local authority. That is not my position. My position is that the local authority should have oversight. The local authority is responsible for the community and the future of that community. However, the amendment that the noble Lords, Lord Phillips and Lord Greaves, and I are proposing is much more modest. It simply says that the local authority should be consulted, and that these things should be taken into account.
Despite a wide-ranging difference of ideological approach between the noble Lord, Lord Baker, and me, the actual answer to these amendments is relatively restricted. It emphasises the importance of local authorities. Unless the Bill keeps in mind that local authorities are big players in this game, there will be conflict and difficulties.
The other point that I would make to the noble Lord, Lord Baker is that much of what he was describing is not what is being proposed by this Government but what was being enacted by the previous Government. In other words, they were seeing schools that were failing and areas where the local authority was performing badly overall. They introduced academies into that context. I do not totally agree with it, but I sympathise and understand the motivation for that. But what the Minister and his boss Michael Gove are proposing is almost the opposite. They are saying that all schools can apply, but they will take the outstanding ones first. They will automatically take the outstanding schools away from the role of the local authority and leave it to manage the less good schools.
That is an inversion of how the noble Lord, Lord Baker, described the motivation for establishing academies. To some extent, it is an inversion of what the previous Government were attempting to do with the academies that they established. That is the part of the strategy I object to. But I repeat that our amendment is much more modest. I hope that the Minister can at least accept one of our amendments.
Lord Bates
My Lords, we should be grateful to the noble Lord, Lord Phillips, for tabling Amendment 4 and giving us the opportunity to look again at Clause 1(6)(d), because there is a potential difficulty for the Government down the line. We intend to provide freedom for people to establish schools, yet paragraph (d) says that,
“the school provides education for pupils who are wholly or mainly drawn from the area in which the school is situated”.
The noble Lord, Lord Baker, has just spoken. Of course, the city technology colleges were successful because they did not have that restriction. There was nothing to say that they had to “wholly or mainly” draw pupils from the area of the school. Therefore, they could draw them from a wider area, which was how they became beacon schools.
From my reading, Swedish schools are not subject to the same restrictions in terms of having to draw from very narrow boundaries. There is a potential risk, particularly in the primary sector as distinct from the secondary sector, of deleterious effects on neighbouring schools. I ask my noble friend to look again at the wording of that clause and see whether “wholly or mainly” needs to be included or whether a general statement about pupils being drawn from the area in which the school is situated would suffice.
Lord Hill of Oareford
My Lords, there have been times in the past half an hour or so when I thought that I should contract my job out to the noble Lords, Lord Adonis and Lord Baker, and I have been sitting here feeling rather redundant. Between them, they made many of the points that I hoped to make, perhaps more briefly but no doubt less forcefully and persuasively and argued with far less experience, in my case, than that which noble Lords bring to bear. Both their contributions very eloquently made the core point that I would like to make in response, particularly to Amendment 4.
Generally, these amendments probe the Government’s intentions in relation to local authorities and the effect of academy orders on local provision, particularly in circumstances in which a large number of maintained schools wish to convert within a single local authority. We also have a specific amendment to do with new schools, to which I shall come in a moment.
We had an earlier discussion about consultation, which noble Lords will be relieved to know I do not intend to rehash. I said in the light of those comments earlier that I would ponder further and, in doing so, think about the points made to me by my noble friend Lord Greaves. We expect schools to consult parents, staff and pupils.
I move to one general point that touches on the points made by my noble friend Lord Baker and the noble Lord, Lord Adonis. I think that it is the case—and I am discovering this already with anything to do with academy proposals—that there is no shortage of people coming forward when there are academy proposals, making their views known. The local press tend to make their views known and local groups make their views known very forcefully. Groups of parents not in favour of conversion make their views known and groups in favour make their views known. It is not as though currently these academy proposals are considered in a vacuum or in some kind of Trappist silence. I am sure that that vigorous debate in which local people, whoever they are, make their views known as widely as possible will continue.
Our point of principle in this Bill is that schools that want to pursue academy status should have that freedom. Others have made that case far more forcefully than I am able to do or need to rehearse.
On the point of the role of localism, which in the coalition we discuss frequently and to which the noble Lord, Lord Whitty, referred, the debate will clearly continue. People have different views on what localism means and how it should be represented and policed—if that is the right word. With the Bill, we think that individual schools—
Lord Greaves
I do apologise, but I cannot avoid jumping in. How do you police localism?
Lord Hill of Oareford
I apologise to the noble Lord. The word “police” came unwittingly from my lips. He may have sensed that I was fumbling my way through my sentence and I withdraw it unreservedly.
It is our view that, with regard to local decision-making, involving individual schools, teachers and parents is about as local as it is possible to get. We can argue about how we make that work, but I think that that is pretty local. We think that responsibility for educating children and young people should be devolved to the most local level possible. It is that principle, which I know that the noble Lord, Lord Whitty, disagrees with strongly, which has led us to decide that local authorities should not be in a position to veto academy conversions. We know that existing rights in the past have meant that that has happened. If we were to give local authorities the right to be consulted on aspects of this new conversion process, our fear would be that they would be frustrated as it has been frustrated in the past. As has already been set out very eloquently by others, the need to tackle problems of education failure is too urgent to allow that to be frustrated.
I turn to the individual amendments. Amendment 4, moved by my noble friend Lord Phillips, would require the Secretary of State to be satisfied, before entering into academy arrangements, that any new academy met a public need in an area. We had an interesting debate in the House in which these points and the potential legal downsides were aired. I have listened with care to the points made by my noble friend Lord Phillips. He and I have discussed this issue and the specific case that he has in mind, so I understand his view. I agree with the noble Lord, Lord Adonis, on the amendment. I am concerned about its wording, which could give rise to the danger that the noble Lord, Lord Adonis, pointed out. The whole point of the free schools policy is that in some cases the proposals should be able to cause detriment to a school if that school has been failing and has let children down repeatedly over a long period. Such a school should be able to be challenged and detriment should be caused to it, so that a new and better school can be established or the school ups its game and improves the education that it offers. That said—
Lord Phillips of Sudbury
I regret interrupting the noble Lord, but he misses the main point of my case, as did the noble Lord, Lord Baker. Considerations on the part of some of those who wish to form new schools are not genuinely to do with educational need; they are—let us put it brutally—about a sort of social separateness. I am thinking of the leafy suburbs to which the noble Lord referred. The case that I referred to at Second Reading and tonight involves a good and improving school—indeed, it is the most improved school in the county of Suffolk—which will, according to its head and chair of governors, be mortally damaged if the new school is created. I cannot believe that that is what this coalition Government want to enable.
Lord Hill of Oareford
I understand the point that my noble friend Lord Phillips makes. As I said, we have discussed it. It is in no one’s interests to come up with proposals that would damage education overall in an area. That is not the intention or purpose.
The decision whether to go ahead with a free school will not be taken in isolation. The Secretary of State has the discretion to take all relevant considerations into account as part of the approval process. Those considerations would, I am sure, include the kind of issues that the noble Lord, Lord Phillips, raises. I go back to my earlier point: it seems inconceivable that concerns of the kind that he has raised with me and the views that I know are held by the people concerned with this case would not be made known, not least by my noble friend. The Secretary of State would have to reflect on those in making his decision.
During the application process, proposers will be expected to discuss their plans with any local partners, including the local authority, and we will encourage them to do that. The Secretary of State has said—as I mentioned in our debate about the free schools announcement, he wrote to local authorities about this at the end of last week—that, alongside other checks in place, he will talk to local authorities to make sure that he fully understands the local context and circumstances before making a final decision on whether to support the establishment of a free school.
I hope that these are common-sense and practical reassurances and that they will provide some comfort that the process gives the Secretary of State the flexibility to take these issues into account. As I also mentioned, these are early days of the free schools policy. Our approach is to work through the implications of the applications as they come in. I am sure that, over time, we will resolve these issues; we certainly have a willingness and desire to do so.
Lord Greaves
Is that letter to local authorities somewhere on the website, or can we please have a copy of it?
Lord Hill of Oareford
I am happy to send that to my noble friend. It has been widely publicised and I think it has been circulated, but I will make sure that he has his own special copy.
Lord Greaves
Maybe other Members of the Committee would like special copies as well. Can we have them individually signed or in different colours?
Lord Hill of Oareford
We will have one colour for the coalition. I thought that the letter had been made available in the Library. If it has not, I will make sure that it is. I will still give my noble friend his own special copy.
It is our view that all schools should be free to apply to become academies, subject to the decision of the governing body and its foundation where appropriate. That does not mean that all schools will be approved to become academies. Some schools may not meet the criteria of acceptability or show sufficient evidence that they will be able to deliver an acceptable level of education. Some may not show evidence of enough demand to make them viable. We will consider each case on its merits in the light of the situation in that area.
Amendments 116, 117 and 129 would require the local authority to be consulted about several aspects of the conversion process. I have already set out our view in this respect. We do not want to be in a position where a local authority could veto the process.
Lord Whitty
I gently say to the Minister that, yes, one of my amendments would give local authorities a veto but another would not, and nor would those of the noble Lords, Lord Greaves and Lord Phillips. Consultation is not a veto. Ministers in this Government will find that all sorts of statutes require Ministers to consult before they make a decision. It is a bit irritating. At the end of the day, Ministers can ignore it or override it, but at least they have gone through the process. That is all we are asking for here.
Lord Hill of Oareford
I understand the point that the noble Lord, Lord Whitty, makes. I stand corrected. Amendments 119 and 191 propose an assessment of the educational impact of each academy conversion before it can go ahead, and a pilot process to make similar assessments over several years. Academies are not a new phenomenon. We know that that they have achieved great things over the years. They already work in partnership with other local schools. They make sensible and co-operative arrangements with local children’s services. If we were newly introducing academies, these proposals might well be worth considering very carefully, but we are not. We are, therefore, not convinced that they are necessary.
Amendment 177 would require academies to promote community cohesion. That is obviously, in broad terms, a worthy aim. The question is, how do we see this being achieved? As a condition of grant, an academy is already required by its funding agreement to be at the heart of its community, sharing facilities with other schools and the wider community. Future academies will continue to be under this obligation.
I am mindful that somewhere in these amendments was Amendment 137, tabled by my noble friend Lady Walmsley. She asked about the delegation of decisions to an individual governor. We would not expect governing bodies to delegate decision-making in connection with an application for an order to an individual. We would ensure that our system required governing bodies to forward to us a copy of the minutes of the governing body meeting so that we can be satisfied in that connection.
Amendments 76A and 92A deal with post-16 arrangements in academies. I hope that noble Lords will be reassured to hear that where we are being asked to fund an expansion of post-16 provision in an academy we will require the academy to make a strong case for expansion and to show that other local providers have been consulted, but we are not convinced that such a requirement needs to be in the Bill. Recurrent funding in academies, including for sixth-form provision, is formulated to ensure that academies are no better off and no worse off than maintained schools for the provision of similar services. However, as we know, they receive funding to buy in services from a local authority or another provider where these will no longer be provided free of charge to the school. A cap that prevented academies from receiving funding for these services would leave academies worse off than maintained schools.
In light of the general discussion that we have had about the role of the local authority, I urge all noble Lords to withdraw their amendments.
Lord Baker of Dorking
Before my noble friend sits down, I draw his attention to the point made by my noble friend Lord Bates. However, I am not asking him to make any commitment tonight. My noble friend Lord Bates said that the new schools should provide education if pupils were,
“wholly or mainly drawn from the area in which the school is situated”.
That may be too narrow. If there is a wider catchment area for the new schools, the effect on the area local schools will be much less. Certainly, we have very wide catchment areas for the university technical colleges; for example, half the Black Country. This is acceptable to local authorities because no individual school is hit too much. Will he consider that before Report, please?
Lord Hill of Oareford
I will certainly reflect on that point and see where my reflections take me. In conclusion, I urge all noble Lords not to press their amendments.
Lord Phillips of Sudbury
At this hour, and having had this very considerable and useful debate, I am sure that it is incumbent on me to withdraw my amendment.