Lord Desai
My Lords, I rise to support my noble friend Lord Hunt. I apologise to the Committee that I did not speak at Second Reading, so I shall keep my intervention short. There is a great desire on the part of the new coalition Government and the Secretary of State to free lots of schools, but there is a paradox in that that requires his dictatorial powers to free everybody—he will lay down what freedom means to everybody. Our task is to ensure that the Secretary of State makes it clear to us in the legislation in what sense he is not taking away powers from your Lordships and another place. We need to scrutinise that, because there are a lot of anxieties about the scale and ambition of this project and the haste with which it is being implemented. There is also a worry that there might be some unintended unfairness to schools left outside the academies field or to local authorities. It would be good if the Minister could make it clear that considerations of fairness and equity and not taking powers away from the legislature arbitrarily will be adhered to.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, I am grateful for the contributions—
Lord Phillips of Sudbury
My Lords, would it help the Minister and the Committee if I were to say that the score is England 1, Slovenia 0?
The Earl of Listowel
I apologise if this has already been covered but the noble Baroness, Lady Perry of Southwark, pointed out that the academy schools will have considerable additional funds. I am sure that we will have discussed this; it is something that I should have given more attention to sooner. Could the Minister, in replying or in correspondence, give as much detail as possible on exactly how much academies can expect to be given? That would be helpful. I thank the Minister.
Lord Hill of Oareford
My Lords, I should probably speak now while England is ahead in the football; on past form that may not persist. I thank the noble Lord, Lord Adonis, for his insight into ministerial life. I know that many will recognise what he says, as I have discovered over the last three days. I also thank the noble Lord, Lord Hunt, for his kind welcome. I am sorry that the noble Baroness, Lady Morgan, is not here, but I am grateful for the noble Lord’s words.
Some interesting and important points have been made about transparency. It is important not just that everything should be fair. It is absolutely clear that our intention is that our approaches to funding should be fair. However, I take the point that they also need to be seen to be fair. Funding is a fiendishly complicated area, as I am discovering as I try to get my head around it. I recognise the need for greater clarity. I say at the beginning that I undertake to reflect on whether there are ways in which we can better demonstrate that, without going down some of the routes that have been suggested in a range of amendments, which, for various reasons, may be slightly overcomplicated and bureaucratic.
I start by summarising some of the main points that have been made and by responding to the opening points raised by the noble Lord, Lord Hunt. The Bill, as he said, would allow the Secretary of State to fund academies either by contractual agreement—as now—or, for the first time, through grants. The purpose of that is to give the Secretary of State greater flexibility. To respond to the point made by my noble friend Lady Garden, it is not intended to be a bit of both; it is a case of either/or. There would be no top-up from one to the other. As the noble Lord, Lord Hunt, set out, it is our view that the vast majority of academies will continue to be funded by the route with which we are familiar—the contractual funding agreement, which runs for seven years. The proposal for the grant, as the noble Lord summarised, is to give a greater degree of flexibility, probably in a small number of cases where having that—particularly in the case of a new school being set up under the academy model—might make more sense. The requirements on academies relating to admissions, exclusions and special educational needs will be the same, whether they are funded through a grant or a funding agreement. I hope that that provides some reassurance to the noble Lord, Lord Hunt of Kings Heath.
On Amendment 79, the Government have made it clear that they will apply a rigorous “fit and proper person” test in approving any sponsors of an academy or promoter of a free school. The Secretary of State will publish on the department’s website the criteria for deciding applications from schools that are not outstanding. In some ways I recognise the point that there is a need for greater clarity on these issues. Part of the answer to the points that have been raised on both sides of the Committee is that, if we publish more information to make clear what the criteria are, we may be able to reduce some of the uncertainty.
We are keen that there should be flexibility in the criteria that the Secretary of State can use, so that he makes the best decision in each case. The Secretary of State expects to approve all applications from outstanding schools other than those where there are exceptional circumstances—for instance, if a school has a significant financial deficit. As the programme develops, it may be necessary to adjust those processes in the light of experience, particularly with regard to free schools. We are keen to ensure that we have the flexibility to do so.
Amendments 14, 79 and 80 all require that the conditions of academy arrangements should be set out as statutory instruments. The noble Lord made that point. Again, we are keen to try to maintain as much flexibility as possible. We will publish a revised model funding agreement, some elements of which I have circulated, although not as early as I would have liked. They are now in the Library. That will make clear the standard terms and conditions under which an academy will be funded.
An academy agreement is a contract between the Secretary of State and an academy trust under which the academy trust agrees to establish and run an academy and in return the Secretary of State agrees to provide funding for the academy trust. Amendment 11 would mean that an academy agreement could put in place only one half of these arrangements, so the contract would not be properly made. Clause 1(3) has been drafted to ensure that future academy agreements will, as now, need to contain both those elements. Amendment 10 would allow the Secretary of State or the academy trust to amend the terms of the funding agreement at any time. That is already the case: the funding agreement can be amended by mutual consent of both parties, via a deed of variation.
Amendments 124 and 125 would require that academy orders be made by statutory instrument—in the case of Amendment 125, subject to the affirmative resolution procedure. The making of an academy order is an administrative process on the way to becoming an academy. While it is important for the school in question, there is not necessarily a wider public interest in an individual decision by an individual school that would make it necessary or appropriate to bring each and every one of these before Parliament.
Baroness Williams of Crosby
The Minister has eloquently defended flexibility in relation to Amendments 124 and 125. As regards accountability, those amendments would create a statutory structure that could be questioned in Parliament. Will he say a little more about accountability, which for many of us is absolutely cardinal?
Lord Hill of Oareford
I was about to make a point that relates to the issue that the noble Baroness has raised. The Delegated Powers and Regulatory Reform Committee of this House, which has reported on the Bill, has made it clear that it does not consider it necessary or appropriate for these orders to be made by way of statutory instrument. It made that clear in its first report of this Session, published on 17 June.
Lord Hunt of Kings Heath
My Lords, I am sure that many Ministers have read out the advice of the Delegated Powers and Regulatory Reform Committee when it suits the Government’s case. However, you cannot look at the orders or the suggested regulations in isolation from the whole process, which takes local authorities and formal consultation out of the procedure. Essentially, the Secretary of State is taking to himself considerable powers. That is why there is considerable support round the Committee for ensuring that there is parliamentary scrutiny. I am happy to concede that the amendments before us may not fit the bill, but there is a principle here in relation to the Secretary of State taking to himself certain powers that are held by local authorities. A formal consultation process will not be allowed; it is certainly not in the legislation. Therefore, there has to be some form of additional scrutiny. As that scrutiny will no longer take place at local level, it can take place only in Parliament.
Lord Hill of Oareford
I am grateful to the noble Lord for making the point that these ways of dealing with the issue may not be the right ways forward. I also take the point on the core question of consultation, which we have debated already in Committee, and the question on accountability, which my noble friend Lady Williams raises. We recognised at an earlier stage in Committee that there is a tension when one is seeking to give greater responsibility at a very local level—to teachers or parents, which is a more local level than the local authority level. I recognise the tension between the very local level and what goes on in the centre and the force of the points made by the noble Lord and others. I will reflect and see whether there is any sensible way in which to take those points on board. I have, in passing, touched on the point that an academy would not need to receive funding through both routes.
Amendment 66 would remove exceptions to the prohibition on academies to charge for education provision. Academies would not be able to charge for and, in many cases, run after-school education such as extra-curricular music or drama lessons. I want to reassure the Committee that academies will not be permitted to charge for education provided during the usual timetabled school hours. In respect of charging for education, academies will have to do exactly what any maintained school would be expected to do.
In resisting Amendment 74, I do not mean to imply that insurance is unimportant for academies. Of course it is important and, under existing arrangements, academies are required to have insurance relevant to their responsibilities. However, that kind of matter does not need to be in the Bill. The same applies to Amendment 95, which would ensure that the Secretary of State’s indemnity covered only reasonable expenditure. The Secretary of State is bound by a duty to act reasonably in all matters. He would therefore offer indemnities only in respect of expenditure that was reasonably incurred.
At the beginning of my remarks, I touched on the need for funding arrangements to be fair and to be seen to be fair. That issue was raised by my noble friend in talking about Amendments 15 and 16, on the National Audit Office. Our view, which the noble Lord, Lord Adonis, would share, is that the NAO would not necessarily be the right body. However, as I have said, I will certainly reflect on the underlying principle of making sure that there is transparency and trust in these arrangements.
On Amendment 96, we are not suggesting that the YPLA should be able to spend disproportionately on sixth-form provision in academies. However, there is no need for this vague duty to be in the Bill. Under the national commissioning framework, local authorities are responsible for commissioning sixth-form places in maintained schools. In addition, there is a consultation process in which academies should take part. Ideally, their sixth-form provision will be agreed with the authority. It may be that in some cases such an agreement is not reached. In that case, the YPLA will step in to make a decision. Its regional structure will enable it to reach these decisions on an informed basis. We are not convinced of the need for a general requirement.
Amendment 31, tabled by my noble friend Lord Lucas, would put in the Bill academies’ freedom to innovate. I am sympathetic to his broad case on innovation, but it would seem slightly odd to specify one particular freedom—the freedom to innovate—when the whole purpose of the academy programme is to deliver freedom more generally. We believe that those freedoms are best delivered by an absence of regulation wherever possible. I know that my noble friend agrees that head teachers and staff know best how to run schools. We think that the Bill gives them those freedoms. The academies that I have seen are already full of innovation and they have done that without the specific legislative freedom to innovate.
Amendment 34 would make it an absolute requirement on all academies to work in partnership with other schools. I very much agree with my noble friend Lord Lucas about the excellent examples of partnership that we have already seen in academies. The Government have the strongest possible expectation that that should continue and that every outstanding school that acquires academy freedoms should partner with at least one weaker school. We hope that this will raise performance and support across the system, to mutual benefit. I agree that outstanding schools are in a strong position to do this. We are asking all prospective academies to provide details of their plans to support another school as part of their application process.
My noble friend’s amendment concerns a core theme to which we keep returning: to what extent do you get the best out of people by trusting them and setting high expectations, or should you instead impose an absolute obligation on them? My instinct has been, and remains, that often one gets further by going down the route of trusting people. We believe that there is a potential problem of the unwilling conscript. One can see that there could be perfectly good reasons why in certain circumstances—perhaps for reasons of geography in a remote rural area—an absolute requirement would not be practical. This might also be the case with schools converting that are not outstanding. The case for a requirement for those schools would be even less convincing than the case for a requirement for outstanding schools. Schools that are currently good or satisfactory and that want to become academies may not be in the best place to form a partnership with a failing school.
Amendment 120A would make it impossible for an academy conversion to be taken forward in circumstances where, for example, it was intended that a single academy should replace more than one maintained school as part of sensible local reorganisation proposals. As noble Lords will appreciate, we want the conversion process to be sufficiently flexible to take account of, and allow for, such reorganisation.
I hope that I have picked up on the main points raised and provided some reassurance. I undertake to reflect further on one of the core themes of this set of amendments and urge noble Lords not to press them.
Lord Hunt of Kings Heath
My Lords, I thank the noble Lord for that response. Of course I will be happy to withdraw the amendment. Perhaps I may just say that the noble Lord has offered to reflect on the issue of parliamentary accountability relating to decisions made by the Secretary of State and I am very grateful to him for doing so.
Lord Adonis
I support what my noble friend Lady Morgan has just said, with particular reference to Amendment 11A. We need to distinguish sharply between deficits and surpluses. At the moment, unless the policy has changed in the past 18 months since I was in the department, schools with deficits are not allowed to transfer to academy status. The deficit must be written off before the school can transfer. I remember many long and very difficult negotiations with local authorities about how deficits would be dealt with.
The issue of deficits then becomes very important if not clarified. Schools with deficits, particularly those with difficult relationships with their local authority because it quite rightly is seeking to get to grips with the deficit, might regard the opportunity to transfer to academy status as a way of evading their responsibilities to deal with the deficit. It can be in no one’s interests that that should happen. If a school is being poorly managed, its budget may be suspended under Section 66 of the Education and Inspections Act 2006. It is not clear under the current Bill what will happen to schools whose budgets are suspended. I should welcome clarification from the Minister on that point, perhaps in writing. There is a statutory procedure for a school’s budget to be suspended, which has to do with very poor management, so will such a school be allowed to transfer to academy status? I imagine that it would be allowed to apply but would not be allowed to transfer. I think that the general principle should be that schools with appreciable, non-trivial deficits should not be enabled to transfer to academy status until the deficit is dealt with. In the early phases of the expansion of academies I find it inconceivable that a school with a large deficit would be able to transfer in any event, as I cannot see how it could be rated as outstanding if it has a non-trivial deficit. That is an important point in terms of taking the policy forward. Will the Minister confirm that it is not the Government’s policy to allow schools to transfer to academy status as a way of evading responsibility to manage their budgets properly if they are currently in deficit?
On the issue of surpluses I take the view entirely of my noble friend Lady Morgan. I do not believe it right that schools should be penalised for being well managed and accumulating surpluses. I can see no reason whatever for a school that has a surplus to have that surplus seized by the local authority if the school chooses to become an academy.
That raises the issue of excessive surpluses. As I know only too well, an excessive surplus is a much debated concept. It may seem excessive to the local authority but, generally, it does not seem excessive to the school, which regards the fact of the surplus as a testament to its excellent management of its own affairs. I am sure that if you ask a school about the purpose for which it has maintained that surplus, it will give you 100 good reasons why it needs the surplus and 100 good reasons why it should not be seized by the local authority.
Therefore, I do not have much sympathy with the notion that schools with surpluses should not be able to transfer to academy status, but I believe that there is an issue about deficits which the Government need to address.
Lord Hill of Oareford
My Lords, before I respond to the detailed points on the amendments and pick up directly on deficits, perhaps I may draw noble Lords’ attention to the published policy statement setting out our intention regarding deficits. In a nutshell, it makes clear that no school with a substantial deficit, which is defined at around £100,000, will be able to convert. However, I will go on to explain what we will do about deficits, because the purpose of the policy is absolutely to prevent any school evading its financial responsibility by converting to academy status and thereby writing off any kind of deficit.
Basically, it would work as follows. If a school had a deficit of less than £100,000 and the Secretary of State therefore decided it was able to convert, the Department for Education would compensate the local authority for the sum of the deficit. The academy would not get a financial advantage out of it as it would have to pay the amount of the deficit back through reduced levels of grant. That is how we would deal with the deficit problem.
Overall, the aim of all these arrangements is to try to ensure that they are fair and reasonable to both the converting school and the local authority. Amendment 11A would mean that the Secretary of State would not be able to enter into academy arrangements with a person with an excessive surplus or deficit. We do not believe that that is necessary because we would put in place arrangements for dealing with surpluses and deficits.
As regards schools applying to convert to academy status—particularly the first wave of outstanding schools, which tend to be pretty good at running their financial affairs, as the noble Lord, Lord Adonis, said—they are retaining their same leadership and management. It is not like the original model for academy conversion whereby one is starting a new school. Therefore, we think it only fair that what is essentially the same school keeps the same money it has put aside as part of its long-term financial planning, the point made by the noble Lord, Lord Adonis, and the noble Baroness, Lady Morgan. However, to underline the point, we think it also right that if a school converts when it has a deficit, it should deal with that deficit.
Amendments 140 and 141 would require the local authority to determine whether a school had a deficit, as well as whether it had a surplus. In our view, those amendments are not necessary because if the local authority is making a calculation to determine whether a school has a surplus, by definition it will have determined whether it has a deficit.
Amendment 142 seeks to maintain the current position when a school closes and becomes an academy. That approach had considerable logic when original academies replaced predecessor schools and gained new management and governance. In effect, in that case an institution was closing and a new one was opening. But in this case, the school is continuing, and if it has put money aside as part of its long-term financial planning it should be able to keep it.
Amendment 143 would prevent the academy from retaining a surplus, and the same argument applies. The local authority will not be losing out from the approach as the money is already accounted for in current surpluses. Therefore, it is not an additional charge on local authorities from which other schools will suffer.
Amendments 144 to 149 would treat a converting school's surplus as a loan from the local authority which the academy would have to pay back over time. Again, we do not want schools to be disadvantaged financially. Maintained schools can carry forward their surpluses from year to year; we think that the same principle should apply to academies. To pay back a loan over a long period would set up a whole new bureaucratic process, which we do not think would help.
Baroness Perry of Southwark
Before the noble Baroness speaks to my noble friend’s response, might the Government consider the arbitrary nature of the £100,000 cut-off for the deficit? For a very small primary school, £100,000 is a very high proportion of its total budget, whereas for a large secondary school it is a very small proportion. Would not a percentage of the budget be a better benchmark for an acceptable deficit than an arbitrary sum?
Lord Hill of Oareford
I will reflect on that. The point of the figure is to provide some benchmark. My noble friend Lady Perry is quite right to say that individual circumstances vary greatly from school to school, and each of those circumstances would need to be taken into account in forming a view as to what is a sensible sum. That figure has been included as a rule of thumb, but I take the point that one may need to exercise discretion.
Baroness Royall of Blaisdon
My Lords, I am very grateful for the clear response from the Minister. It is extremely helpful to have clarification on deficits and surpluses. The point raised by the noble Baroness, Lady Perry, is extremely important. That would not have come out if she had not raised it, so I am very grateful to her. With that, I beg leave to withdraw the amendment, but before I do that, I should inform the House that we won 1-0.
Lord Hill of Oareford
My Lords, I do not envy myself the task of winding up either. This is my first opportunity to listen to a debate in this House about matters relating to religion. I suppose that I should call it my baptism. As the noble Lord, Lord Hunt, said, there have been a number of extremely forceful and powerful speeches from every point of the compass. Reconciling them is not straightforward.
Perhaps I may take us back to the Bill, because in this fascinating debate we have gone quite far from it. The Bill is quite modest in its approach to current religious schools and the question of how they might want to think about conversion. Our basic, underlying approach in all these matters is to seek to allow schools that currently have a religious nature to convert on their current footing with the safeguards and requirements that are in place. We are not seeking to change the nature of those schools or in any way to have some kind of Trojan horse, unleashing a new wave of faith schools without some of the restrictions that are in place, to which a number of noble Lords have referred.
Having made that general point, perhaps I may go through the individual issues that have been raised. First, I say in response to the noble Lord, Lord Hunt, that throughout this process I have been happy to talk to any noble Lords who can face the prospect of a further discussion. I have also been talking at length to churches and am very happy to talk to others. If, in that process, I am able to give further clarification and reassurance to underpin my basic point, which is that on these important issues we are not seeking to change the status quo with this Bill, I shall obviously be very happy to do so.
I now return to the beginning of this debate and the amendment moved by the right reverend Prelate the Bishop of Lincoln. The Government are committed to ensuring the maintenance of the churches’ relationship with their schools. As the right reverend Prelate knows well, I have met representatives from the churches. I understand the concerns that they bring to this debate, which are from the other end of the spectrum compared with other points that have been made. I have studied the Bill carefully in connection with those concerns and can see nothing in it that could undermine the very important relationship that the churches have with their schools. Again, one of my tasks is to try to build on the reassurance that I hope I have been able to give so far. As the right reverend Prelate knows, I have written to the churches to set out our commitment to work in partnership with them. A copy of that letter is in the Libraries of both Houses.
I confirm that the existing protections and responsibilities in relation to admissions, the curriculum—including the obligation to provide religious education and collective worship—and staffing arrangements will be the same for academies with a religious character as they are for maintained schools with a religious character. I think that that was a specific point made by my noble friend Lady Williams. So far as employment law is concerned, the Bill retains the status quo. All schools will need to comply with employment law.
The religious education syllabus requirements for academies are currently delivered via the funding agreement, rather than through legislation. In future, they will be delivered through academy arrangements—either through the funding agreement or the grant conditions—in accordance with Clause 1.
So far as concerns the question from the noble Baroness, Lady Massey, I agree that it is important that pupils have the right to be excused from, and that parents have the right to withdraw their children from, religious education and worship. It is an important issue of conscience. However, we think that the noble Baroness’s amendment is unnecessary in that academy funding agreements already require academies to comply with the School Standards and Framework Act provisions on pupils being excused and in relation to withdrawal. I place on the record that all future academy arrangements will have that same requirement. Therefore, the important right that the noble Baroness raised will be maintained.
Such protections as are set out in the funding agreement cannot be changed without the agreement of both the academy trust and the Secretary of State. We think that having those requirements in the funding agreement gives the same degree of protection to academy trusts as would be provided by legislation. As many in this Committee know better than me, there is a wide variety of approaches in how the churches govern and manage their schools—it is a complex area. Our view remains that having those provisions within the funding agreement rather than in legislation allows for individual circumstances to be reflected and avoids creating an undertaking that may not fully reflect the position of all religious schools.
On Amendment 35 tabled by my noble friend Lord Lucas, I shall reiterate my opening remark. We are not seeking to use the academies programme as a back-door way of deliberately increasing or changing the balance that we currently have in our education system. We do not think it appropriate to limit the number of faith admissions to 50 per cent when an academy is replacing an existing faith school; we think that the school should be able to carry across its current arrangements. That would not add or change the current situation. I hope that this provides some reassurance to noble Lords that we think it right that for the new academies—the new free schools—the requirement of limiting the number of faith admissions to 50 per cent should be in place. New academies would not be able to go beyond 50 per cent, as that would reduce choice. We think that it is important to have that balance and I am happy to make that clear tonight.
Lord Hunt of Kings Heath
The Minister is being very helpful, but can he clarify that? Whatever assurance is given, some schools will have pupils of one faith only. That is the reality of the schools to which the noble Baroness, Lady Murphy, referred. What will happen in that situation? It is likely that you will end up with students from only one faith or culture going to the school.
Lord Hill of Oareford
These are difficult and complicated matters and I do not have a simple and straightforward answer for the noble Lord now. I have said that it is an important matter that we can debate further outside this House. Let us do that by all means.
As I was saying, we think it important to ensure that local children of all faiths or none—I take the point that has just been made—have access to new academies. We will ensure that there is the balance that I discussed between community and faith places. All academies will have to have admission arrangements.
Lord Adonis
The noble Lord has just made an incredibly important statement of policy in respect of new schools. After this debate, will he clarify whether the 50 per cent provision that he mentioned in respect of new academies covers existing independent schools that transfer into the state system by means of academy status? That would be the principal means by which schools that are exclusively of one faith in terms of admissions could seek to come into the state system.
Lord Hill of Oareford
That is an extremely good question, which I will need to follow up separately with the noble Lord either orally or in writing, in which case I will circulate the letter. The principle of independent schools coming in is that academically they should be not selective but open in their admissions. I will need to follow up that precise point and come back to him.
We expect that in most cases the relevant religious body would be represented on the governing body of the school that converted. I am talking about existing religious schools converting. Therefore, those people would be informed of the Secretary of State’s decision not to issue an order. The relevant religious foundation or trustees would obviously be closely involved in the process and could veto any academy application. In many cases, they would be the people signing the funding agreement as the academy trust. They would be closely involved in all stages of the application process and fully informed of all decisions.
Where there is currently an existing foundation or a trust associated with the predecessor school, we expect those bodies or their representatives, if they wish to, to become members of the new academy trust. That academy trust, once established, would appoint the majority of academy governors. That mirrors the current arrangements for both academy sponsor appointees and the appointment of governors to voluntary aided schools. As members of the trust and as signatories to the academy’s memorandum of association, they would be fully involved in the process of a school becoming an academy. The governance arrangements will be agreed between the Secretary of State and the academy trust and set out in the articles of association. As I explained earlier, the articles cannot be changed unilaterally by either the Secretary of State or the academy trust.
The Bill does not change the required processes in respect of consultation, objection and adjudication on admission agreements for religiously designated academies. A school will continue to be required to consult its religious authority on any changes. Neither will it be affected by our policy on the provision of new non-faith places that a new academy is required to provide at least half of available places to the broader community. The Government’s intention overall is to maintain the current relationship between religious bodies and their schools. My letter to the churches set out that commitment.
If the right reverend Prelate the Bishop of Lincoln would like to discuss this further, I shall be happy to do so. More generally, as I have said on those other important points that have come up, I will do my best to provide further clarification. I hope that I have dealt with the broad issues of what has been a long and interesting debate and I ask the right reverend Prelate to withdraw his amendment.
The Lord Bishop of Lincoln
If I had known what I was embarking on one and a half hours ago, I might have thought twice. However, I am glad that I did not think twice, because we have had a stimulating debate. As the Minister said, we rather drifted away from the Bill and we need to be attentive to the fact that the amendments are specific to the Bill. I, too, was challenged a couple of times to give reassurances, so I am happy to give them. In an act of gross self-promotion I can reassure the noble Baroness, Lady Massey, and others that I have just published a book, No Faith in Religion—£8.99 in all good bookshops. Its very title may lead those noble Lords to think that they and I have more in common than they imagined.
I can reassure the noble Lord, Lord Baker, that we in the Church of England—and, we believe, the Catholic Church—have made a commitment to an extension of what our community expects when widening the business of educational reform. I reassure the Committee that that remains the case. On community cohesion, as has been mentioned, church schools received a good bill of health not long ago. We need to hang on to that fact.
I am grateful to the Minister for the way in which he has dealt with these matters, not least in his gracious summing up. I want to reassure noble Lords that I do not think that my amendments are asking for anything less than what is currently the case. They are certainly not asking for anything more. I sensed in the debate that there was a feeling that more was being asked for on behalf of church schools and other faith schools than is currently the case. That is not so.
I shall withdraw my amendment, but the debate has shown that there needs to be clarity to ensure that those of us who are uncertain of our position can be made more certain. Those who have fears about the place of religious affiliation in education might have those fears allayed if something more were included in the Bill. Having said that, I beg leave to withdraw the amendment.
Baroness Sharp of Guildford
Just before the Minister responds, I should say that I have not spoken to Amendments 185A and 188A tabled in my name, among others, because they should not really have been included in this group. I will speak to them separately later.
Lord Hill of Oareford
A diverse set of themes and topics has come up. I shall come back to the point about “wholly or mainly” in a moment, because it is one of the themes that have emerged on which I hope to be able to provide a little reassurance. I shall take my responses in the order in which I have them before me.
Amendment 63 concerns monitoring and whether we need to have independent monitoring arrangements. The Bill requires compliance with the characteristics set out in the academy arrangements. How that works in practice is that the Secretary of State ensures at the outset of an academy project that it meets those characteristics. Compliance is then monitored by the Young People’s Learning Agency. It has the duty to monitor compliance and, if the Secretary of State is not satisfied, he has the power to terminate an arrangement.
Amendment 17, moved by my noble friend Lord Greaves, is concerned with language. I agree that language is important. Personally, I quite like the word “independent” and the concept of independence. I take his point about how certain words carry freight. One could argue that one should call independent schools “private schools” and academies “public schools”, but the amendment would make academies maintained schools rather than independent schools, which would in effect prevent them from gaining the freedoms that are the purpose of the Bill.
On Amendment 22A, the Bill as drafted requires those setting up academies to meet the demands of both paragraphs (a) and (b). I am advised, and can assure noble Lords, that adding the word “and” to this subsection would not change the meaning of it. We do not believe that there is ambiguity in the current drafting.
Lord Phillips of Sudbury
Can the Minister put it more clearly? Is he saying that the amendment is superfluous because the two paragraphs are both applicable to the undertakings?
Lord Hill of Oareford
I think that that is what I am saying. I am particularly nervous with my noble friend Lord Phillips because I know that he is an expert on every aspect of charity law. If I am wrong and I have misled him, I shall clarify that with him.
Amendment 23 would restrict the ability of academy trusts to use contractors to deliver particular aspects of the running of the academy, including, for instance, cleaning services or the provision of ICT. One would want academies to be able to contract out such services, rather than teachers and heads having to take responsibility for them. If maintained schools are able to contract out services in this way, why should not academies?
Lord Phillips of Sudbury
I apologise for interrupting again. I know that it is hard on the Minister, who has this huge group of amendments to deal with. These are nitty-gritty points, but the natural meaning of,
“to carry on, or provide for the carrying on of, the school”,
is not that the proprietor of the school should employ external cleaners or providers of this or that. In common parlance, the carrying on of a school surely means the running of a school. Will the Minister take further counsel on this and, in the light of that counsel, consider the amendment again?
Lord Hill of Oareford
That is clearly the purpose and a new academy set up by a parental group may well need a significant amount of educational support in delivering it. I think that that is the point that my noble friend Lord Phillips raised when he spoke to his amendment. As part of the process of applying for academy status, the applicant would have to demonstrate how education is going to be delivered and whether use will be made of outside services in so doing. It would all be considered as part of the application process.
Baroness Morgan of Huyton
I am concerned that there is a suspicion—I accept that this is not what we are talking about here—that an academy provider and the group running it could hand over to someone else in two years’ time without being properly monitored. As I understand it, that is the concern being expressed. It is also my concern.
Lord Hill of Oareford
That could not happen. To clear up another often expressed concern that may lie behind the questions of my noble friend and other noble Lords, an academy trust cannot be a profit-making body either—although, clearly, the people providing the service will be paid for doing so.
Amendment 26, to which the noble Baroness, Lady Royall, referred, would require future academies to continue any formal collaboration arrangements established between a former maintained school and FE colleges. As Section 166 of the EIA 2006 allows only for formal governance structures to be established between maintained schools and FE colleges, any partnership would operate on an informal basis. That is what happens currently and it is the right way to continue. It is happening in Luton, where Barnfield College, an FE college, is sponsoring two academies. In practice, that approach seems to be working.
Amendment 27 would prevent an academy trust from changing the age range to which it would provide education—and there was a long discussion subsequently, which I may come back to on later amendments, about the role of primary schools. The amendment would prevent an academy from, for example, providing early years education if it did not do so from the point of conversion and it could prevent it from expanding its provision from secondary to sixth form. However, given proper safeguards, those are the kinds of developments that we want academies to have the freedom to deliver. If that is what local parents want, we want academies to be able to do that.
Baroness Royall of Blaisdon
It is a point about consultation. I am not seeking to prohibit academies from expanding the age range, but the fact is that they would do so without consultation. This harks back to the whole consultation issue and I hope the Minister will consider that point.
Lord Hill of Oareford
I am considering that. On the specific point of sixth-form expansion, an increase in places would require a change to the admissions arrangements, which would itself require local consultation and agreement by the Secretary of State. That may provide the noble Baroness with some comfort.
Amendments 45, 47, 48 and 49 revolve around the debate we had about “wholly or mainly”. I share the views expressed on all sides of the House about boarding academies. I am very attracted to the idea and wish to see whether we can do more with them. Other points were made around a particular specialism and one would not want provisions in the Bill which made that problematical.
As to the specific question about the existing 35 state boarding schools—this provides the answer to the substantive question behind it—yes, they are able to apply for academy status. To respond to the noble Lord, Lord Adonis, the Duke of York’s Royal Military School will become a boarding academy within the current requirements—which, as he rightly said, date from 1988 wholly or mainly—so they have not prevented that from happening. A performing arts academy has been set up in Birmingham to serve that city’s pupils, and I am advised that that has been possible within the “wholly or mainly” requirement. I am alive to the point—I have asked about it within the department—and I am keen to encourage the kind of developments referred to by the noble Lord and others, including the noble Lord, Lord Northbourne. I am keen to do this and I am told that it is not a practical obstacle. I shall be happy to take up the noble Lord’s offer to discuss the issue subsequently and make sure that I am right in my understanding.
Amendment 56, which was spoken to by the noble Baroness, Lady Royall, seeks to ensure that an academy continues to provide for CPD and suggests making it a requirement for future academy arrangements. Everyone would agree on the need for continuous professional development in academies, as in all schools. I am advised that it is one of the areas without the sort of requirement that she suggests. Academies often do particularly well as a result of the overall way in which they approach staff issues and pay and conditions. Academies are supported by education advisers whose role has included looking at this area in particular. I am told that it is working well, so we are not convinced that it needs to be a statutory requirement.
Amendment 57 would require that corporal punishment be prohibited in academies. The School Standards and Framework Act 1998 amended the Education Act 1996. It effectively abolished corporal punishment in all schools by providing that there should be no defence to criminal or civil proceedings as a result of any corporal punishment being given to a child being educated at a school. That provision applies to academies as well as maintained schools and has been in force since September 1999.
Amendments 58, 99, 109 and 120 would restrict academies to particular types or age ranges. Nursery schools are not able to become academies because they cater for pupils below compulsory school age and, to be established, academies must have at least five pupils of compulsory school age. I listened with interest to the debate on primary schools and understand some of the concerns raised. My noble friend Lady Sharp suggested federations of primary schools, which is exactly the kind of thing that one would want to encourage. We have said—this responds in part to my noble friend Lady Williams—that we will work with local authorities to address these issues as the scale and nature of academy conversion becomes clear. As I have said repeatedly, we are approaching this conversion permissively. We are not seeking to make all primary schools convert. We are committed to thinking through the issues that she raised about the practicalities involved for primary schools. We will continue to reflect on that and work with local authorities. That said, we are keen that primary schools of the sort that I visited in Edmonton on my second day in the department—it is a fantastic primary school which has been turned around—have the chance to convert. The headmistress there, Patricia Sowter, was very keen on academy freedoms. Primary schools should have that chance and we do not want to stand in their way.
Amendments 127 and 25 raise a theme that we have debated in previous groups. They would require a school converting to an academy to join forces with a weaker school unless particular circumstances led the Secretary of State to decide that it was not the right thing to do. The noble Baroness, Lady Morgan, said that we have used warm words and that one is looking for more than that. I shall continue to try to heat them up even further if I can. I completely agree with her and other noble Lords who made similar points. The importance of partnership between outstanding schools converting to academies and other schools cannot be underestimated. We have been explicit that each outstanding school will be expected to sign up in principle. They will have to set out their plans as part of that process. However, it is still our view at bottom that approaching partnership on a volunteer rather than a conscript basis may make those partnerships more fruitful, in that they will be willingly entered into rather than perhaps approached more grudgingly. Amendment 127 is not limited to outstanding schools. Our view is that if a school is not yet outstanding, to burden it with a requirement to partner with a school eligible for intervention would not be a sensible way forward.
I hope that my answers have provided some reassurance, particularly on the “wholly or mainly” point, which I recognise is important and am happy to discuss further. On that basis, I urge noble Lords not to press their amendments.
Lord Lucas
My Lords, on “wholly or mainly”, could my noble friend provide me—it need not necessarily be now—with an example of the kind of school that the provision is designed to prevent becoming an academy?
Lord Hill of Oareford
My noble friend Lord Lucas has a well earned reputation for being able to ask such questions; I think that it is not designed to have a very simple or easy answer. However, I shall reflect on it. If I were able to offer any enlightenment to him, I should be delighted to do so and extremely pleased with myself for having been able to come up with an answer.