(13 years, 10 months ago)
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22:45 - Division on Amendment 26 - Ayes: 44 / Noes: 111 - Amendment 26 disagreed.
Lord Whitty
“( ) An Academy is a public authority for the purposes of the Human Rights Act 1998 and the Equality Act 2010.”
Lord Whitty
This amendment should be fairly straightforward. In a sense, I am on the same page as the noble Baroness, Lady Walmsley, was at the very beginning of proceedings today. It appears slightly odd that we should propose amendments that require schools to obey the law, but life is more complicated than one would think. The point of my amendment is to clarify that, for the purposes of the Human Rights Act and the Equality Act, academies are regarded as public authorities. This is important in both contexts. The noble Baroness, Lady Walmsley, got an assurance in fairly unequivocal terms on the Human Rights Act, and I should like an equivalent assurance, at least, on the Equality Act. I am proposing this in the hope that the Minister will be disposed, if not to accept the amendment, at least to give me a statement that meets the points of the amendment.
Notwithstanding what was said about governing bodies just before the break—and the Minister and others will know that I am not entirely well disposed towards this Bill in principle—I and, I think, most people in this House, would accept that the majority of governing bodies and managements of academy schools that come through this process will operate within the mainstream of educational approach and activity. Nevertheless, it is possible and, at the edges, probable, that the process of establishing academies—and even more so free schools, which will eventually be subject to the same provisions—can lead to governing bodies that are outside of the mainstream. I put that as delicately as possible. There are particular subsets of parents who have particular views on education; particular faith groups will have views on matters of gender and sexuality that are not the normal approach that would be guaranteed if the organisation were subject to the Equality Act and the Human Rights Act. We have to bear in mind that, whatever safeguards we build in, such minorities could qualify to establish a school under that process. Alternatively, it could be that the management of the school is proved to be so lax that, whatever the ethos of the governing body, it is not properly observed. I should therefore like it clarified that the requirements under the Equality Act and Human Rights Act that apply to public authorities will apply to academies, despite their slightly ambiguous position. If the Minister can give me that assurance, we can move on to the next amendment.
Lord Wallace of Saltaire
My Lords, we are happy to confirm, as I thought that we had in Committee, that the Government accept that academies are public authorities for the purposes of the Human Rights Act 1998. We welcome the noble Lord’s intention of ensuring that; we will, as we said in Committee, ensure that academies are included in Schedule 19 to the Equality Act 2010. As the noble Lord will know, academies as independent educational institutions will be required to comply with all the duties in the Act that apply to schools more generally with respect to non-discrimination, reasonable adjustments for disabilities and the like, including gender issues. Academies are not currently included in Schedule 19, but the schedule will be updated before the duties come into force in 2011 and academies will be included in time for that commencement. Therefore, by the time those duties are implemented, it will be clear that an academy is a public authority for the purposes of the Equality Act.
With that clear reassurance, I hope the noble Lord will feel able to withdraw his amendment.
Lord Whitty
My Lords, I am grateful for that clear assurance. I shall not even pursue the avoidance-of-doubt argument. I shall accept the Minister’s remarks in good faith, and am very grateful for them. I beg leave to withdraw the amendment.
Lord Greaves
“(9) Before entering into Academy arrangements with any person the Secretary of State must make regulations which set out the criteria under which proposals for such arrangements may be granted.
(10) Regulations under subsection (9) shall not come into effect unless a draft has been laid before and approved by a resolution of each House of Parliament.”
Lord Greaves
My Lords, I move Amendment 17. In this group is Amendment 53 on a related issue, in the names of my noble friend Lady Williams of Crosby and myself, to which my noble friend will speak later.
This is really about the accountability of the new academy system and of the Secretary of State when he is exercising the powers that he will have in the management of the academy system. It has been pointed out on a number of occasions in debates on this Bill that in some crucial areas the Bill represents and provides a significant increase in the powers of the Secretary of State and a significant centralisation of the education system and the school system with regard to the academies. The more academies are created, the more that will be the case. There is a movement of powers of supervision, monitoring and various other aspects that have been discussed away from local education authorities to the Secretary of State and the processes that the Secretary of State will put in place, such as through the Young People's Learning Agency.
These amendments look at two aspects of this. The first is the creation of academies. There were amendments in Committee to make the academy orders—in relation to the conversion of individual schools, for example—subject to parliamentary approval. I think that there were some amendments from the Labour Front Bench suggesting that this should be the case. The argument was put forward, with, I think, considerable justification, that in most cases, or all cases, they would simply be a formality and that would clog up the system because there were going to be quite a lot of them. Rather than parliamentary approval being required for individual academies being set up or converted, however, this amendment would require parliamentary approval for the criteria by which academy arrangements will be created. It suggests that before entering into academy arrangements, the Secretary of State must make regulations that set out these criteria, and the criteria will be subject to parliamentary approval.
A later amendment from the noble Lord, Lord Whitty—Amendment 28, I think—is similar, in a sense. It refers to academy orders and says that the Secretary of State has to publish the criteria by which academy orders will be made, but it does not actually go as far as requiring parliamentary approval.
Whether this is about the orders or about the arrangements—obviously they are all part and parcel of the system that is going to exist—there are important policy issues here. It is not just a question of mechanically carrying out a system of creating academies; it is a question of setting out the criteria by which academies can be created. To some extent, it is a matter of whether or not schools qualify. To another extent, it is a matter of the model academy agreement, and it may be that that agreement, which this amendment does not cover, requires some sort of parliamentary scrutiny as well.
These are important issues. All these important central policy issues are being concentrated on the Secretary of State, who will have considerable power. No doubt Parliament can find ways of scrutinising these as it wishes through various parliamentary mechanisms, but there is nothing automatic in the Bill that sets that out.
That is the purpose of Amendment 17: to probe, and to promote yet again the concept that when the Secretary of State is making these decisions, the basis on which he is making them—the fundamental policy—really ought to be subject to parliamentary scrutiny.
The second amendment, which my noble friend will speak to, is about scrutiny of the system after it has been operating. It is the other side of the same coin. I beg to move.
Baroness Williams of Crosby
My Lords, I shall speak briefly to Amendment 53, which is also part of this grouping. I agree with my noble friend that the proposal that he makes under Amendment 17 would be appropriate.
Owing to the lateness of the hour, I shall keep to my own amendment, the purpose of which is essentially to give Parliament an ultimate level of accountability for what happens in the secondary and primary education system through the process of an annual report repeated every year about the progress of academies, their successes, their failures, their record and so forth.
I shall say clearly, but briefly, why this matters so much. The present structure of accountability is by way of local authorities through to, eventually, their electorates. That system will be largely disappearing by the time that this Bill is passed, certainly for whatever group of schools that apply to be academies. The question then becomes, as my noble friend has said, whether there is any level of accountability, other than directly that of the Secretary of State to Parliament, more precisely related to academies themselves.
It is of the greatest importance that we have a report to Parliament. There will of course be reports to Select Committees, but we all know that Select Committees—although we hope that this situation will be substantially reformed—do not get the public or media coverage that is given to Parliament itself. The idea of a report to Parliament in which all parliamentarians, Members of both Houses, can ask questions is of the first importance. I cannot emphasise enough the crucial nature of accountability in any major democratic reform of this kind. I will simply say that the purpose of Amendment 53 is to arrange for an annual report. That report would clearly be greatly strengthened by the belt-and-braces approach suggested by my noble friend, as we would then know whether academies maintained and ascribed to the agreements and arrangements that were made for them. Even so, the importance of a report to Parliament is central. We have reports to Parliament on a wide range of issues, so why not on a major part of the education of the people of this country?
Lord Hunt of Kings Heath
My Lords, we see a bit of a dilemma. In order to give individual schools more authority over their affairs through academy status, the Secretary of State is having to take powers to himself to authorise that. Clearly, that approach has been used before, but with power goes accountability. There is a gap. I agree with the noble Lord, Lord Greaves, that in some way the Secretary of State needs to be more accountable to Parliament for the responsibilities that he will discharge.
In Committee, as the noble Lord, Lord Greaves, said, we debated a number of amendments tabled by Members on this side of the House, which, in retrospect, were probably too detailed and would have required many hundreds of statutory instruments coming to your Lordships’ House and the other place. The noble Lord has come forward with a more sensible approach, which deals with the principles of the granting of academy status and allows Parliament to debate the criteria. As the Secretary of State will be given considerable powers in this area, it is right for Parliament to ask for greater parliamentary scrutiny. I certainly think that the noble Lord has got it right.
How quickly the party opposite has warmed to Executive power. For how many years have we heard noble Lords from both parties opposite ask for more parliamentary scrutiny? I find it surprising that the Government are not able to respond on this matter. Surely what the noble Lord suggests is not too much to ask.
Baroness Walmsley
My Lords, I, too, support the amendments in the names of my noble friends. I remind the House that we have already today—and, indeed, in our debates yesterday—come up with several examples of things that could legitimately be included in the annual report. Yesterday, we talked about the effect on primary schools; today, we have talked about the effect on young people with special educational needs and young people leaving care. To that, you could add achievement in exam results and all kinds of other issues. The amendment is not prescriptive in any way, but it is as well to bear in mind the sorts of subjects that Parliament may wish to consider in holding the Government to account when asking questions about such a report. This is a valuable proposal.
Baroness Howe of Idlicote
My Lords, I support this suggestion. There will be considerable power at the centre and a need for parliamentary accountability. The approach proposed by the noble Lord, Lord Greaves, and spelt out in more detail by the noble Baroness, Lady Williams, is one that I certainly find acceptable.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, the issue of accountability that we have just been debating is extremely important, as the amendments rightly reflect. I take the point made by the noble Lord, Lord Hunt, as he prompted me to think whether it is right to make provision for greater parliamentary scrutiny. I think that there is broad agreement across the House on the need for that, which I shall come back to in a moment.
Amendment 17, moved by my noble friend Lord Greaves, would, as we have debated, require the Secretary of State to make regulations to set out criteria for entering into academy arrangements. I hope that he will accept that 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. We have circulated the draft funding agreements so that noble Lords can see the kind of terms and conditions that will apply to academies. We will publish the criteria for deciding applications from schools that are not rated as outstanding by Ofsted, which, as my noble friend knows, are proceeding on a slower timetable in any case.
That said, since the academies programme started, the signing of the funding agreement has always been a matter between the Secretary of State and the academy trust. The Secretary of State has discretion over his decision in that respect to enter into academy arrangements and will want to review each application for an academy order on its merits. We think that some flexibility is needed in his consideration of these factors to ensure that he can make the right decision in each individual case. We have touched before on the point that the Delegated Powers and Regulatory Reform Committee has scrutinised the Bill and is satisfied that the level of parliamentary scrutiny it includes is appropriate. Nevertheless, as I alluded to yesterday on Report, there is a case for the Government going further in trying to make sure that Parliament has the opportunity to see how the policy is working.
Lord Greaves
My Lords, I am grateful for what the Minister said about Amendment 53, which is half of what we are putting forward. We would be very happy to take up his offer. On that basis, no doubt my noble friend will not move Amendment 53 when we finally get to it some time tonight.
In relation to Amendment 17 there is a question that will not go away. There are fundamental issues that go beyond whether an application for academy status is being made by a fit and proper person. While the criteria for approving academies will be published, it seems that there need to be ways in which Parliament can discuss those criteria. We have a Secretary of State at the moment who is full of revolutionary zeal in this area. He is being very open and honest with us, through the Minister, about how he will approach this and the kind of criteria which will be looked at. However, Secretaries of State do not last for ever. There will be further Secretaries of State in the future; they will be different people with different ideas, and may wish to change the criteria. Under those circumstances it seems absolutely right that he or she should come back to Parliament.
Lord Hunt of Kings Heath
My Lords, given the complete mess over the schools building programme, how long does the noble Lord give the current Secretary of State?
Lord Greaves
That question is a long way above my pay grade. The Secretary of State seems to have quite a lot of influence in the Government at the moment. We will see how it goes and I wish him the best of luck.
The Minister said that the funding agreements would be published for each school; each application would be considered separately; and freedom of information requests will get all the information they require in relation to each school. We understand all that but it is different from parliamentary scrutiny of the overall policy and the criteria on which the Secretary of State will make the decisions. This is an issue which will not go away. It will probably be debated in considerable depth when the Bill gets to the House of Commons. We will observe with interest how it gets on. In the mean time, I beg leave to withdraw the amendment.
Baroness Wilkins
“( ) In Schedule 1 to the School Finance (England) Regulations 2008, after paragraph 8 insert—
“8A Where a child is a registered pupil at an Academy, expenditure in respect of services for making provision for pupils with low incidence special educational needs or disabilities.”
( ) Where a local authority fails to secure satisfactory provision for pupils with low incidence special educational needs or disabilities, the Secretary of State may make alternative arrangements.”
Baroness Wilkins
My Lords, I speak to Amendment 21. In Committee, I spoke about my concerns that the Academies Bill will fatally undermine specialist support services for children with low incidence needs. I am grateful to the Minister for his letter of 2 July in response to these concerns, and to the noble Lord, Lord Wallace, for his reply in Committee. I particularly welcome the Government’s commitment that pupils in academies with low incidence SEN needs or disabilities will receive the support they require from specialist support services. But, unfortunately, my worries have not yet been allayed. The Special Educational Consortium, particularly the National Deaf Children’s Society, RNIB and Sense, share my concerns.
The funding arrangements for specialist support services may be complex but the problem is clear. If funding from the schools budget for specialist support services is to be dispersed widely to a large number of academies in a given area, this will reduce the funding available to existing specialist support services in local authorities. It takes away the pooling of resources that ensures services to children with low incidence needs can be met at reasonable value for money. As the noble Lord, Lord Hill, put it in his letter to me, this will result in “dis-economies of scale”. The noble Lord noted that academies will be able to buy back support from their local authority. However, a survey by the National Deaf Children’s Society raises serious concerns that this is simply not happening. The society found that of 66 local authorities where a deaf child with a statement of SEN was enrolled in an existing academy, in only 17 of these local authorities were the academies buying in support.
So what is happening to the deaf children in the other 49 local authorities? The society suspects that many local authorities are providing services free of charge, but that clearly will not be sustainable with greater numbers of academies. The worst case scenario is that children with sensory impairments are going without the support they need. NDCS is aware of examples where this is currently happening—for instance, in one local authority in Yorkshire and the Humber, where uncertainty over funding and buy-back has left deaf children totally unsupported.
In Committee, the Minister stated that he recognises this is a continuing problem, and that was very welcome. However, I would like him to go further and commit to finding an urgent solution to this problem. I recognise that it is not a new problem. However, if the Academies Bill is going to make matters worse, surely the Minister has a responsibility to act now before the Bill becomes law. In Committee, he suggested that “partnerships among schools” will clearly be the best way forward. Will he say a little more about how this will work in practice? How will these partnerships be funded? What support and guidance are being provided to schools to develop them? How many partnerships are there in place already? Most importantly, what evidence is there that these partnerships will ensure that every child with low incidence needs gets the support that they need?
The Minister also stated that academies will have access to top-up funding to cover the costs of support for children with low incidence needs. He went on to say that this will be funded by the local authority from its schools budget. Will he confirm that this is the same schools budget which will be cut if a large number of schools convert to academies? If so, how can these specialist support services be funded and provided on a reliable and sustainable basis?
The Minister stated that if the academy fails to secure the necessary support, it will be in breach of its funding agreement, and that the Young People’s Learning Agency can investigate, following a complaint. In Committee, the noble Baroness, Lady Sharp, made the important and obvious point that the YPLA is not an inspection agency. In response, the Minister stated that voluntary organisations will monitor the situation. However, surely he must agree that this is a very weak and unacceptable safeguard against the risk that children with low incidence needs will be denied the support they need. Many voluntary organisations simply do not have the capacity to monitor provision in large numbers of individual academies across England. It is not appropriate for such organisations to act as a watchdog, relying on them to make sure that the Government and academies fulfil their legal duties towards children with special educational needs.
My amendment would move funding for specialist support services out of the schools budget and into the LEA budget. This would protect these services from some of the unintended consequences to which I referred earlier. In Committee, the Minister did not set out his view on this. If it is his view that this amendment should not be passed, I should be grateful if he could explain why, and what alternative remedy will be put in its place. My amendment would also give the Secretary of State the power to make alternative arrangements if specialist support services in any particular area are inadequate.
In his letter, the noble Lord, Lord Hill, noted that academies will in future be free to buy in services from other providers. In light of the difficulties that some local authorities have in meeting the needs of children with low incidence needs, I recognise the appeal of this and hope that this option will be explored further, as I have no desire to prop up services that are not doing a good job. However, I stress that this needs to be fully thought through and fully planned for.
I very much welcome the fact that officials have met with the National Sensory Impairment Partnership, as the noble Lord, Lord Hill, pointed out in his letter. I have been told that the partnership also welcomes this and believes that there has been a useful discussion and exchange of views, which it is keen to continue. However, it does not believe that there has been sufficient progress in resolving the outstanding questions and concerns.
The partnership believes that the Government should set up a time-limited working group that will consider alternative arrangements and make urgent recommendations. This group should include representatives from the Department for Education, local authorities, professionals, head teachers of academies and maintained schools, and parents. I firmly agree with the partnership. If the Government wish to show that they are serious about addressing these important concerns about specialist support services and diseconomies of scale, it is imperative that a working group be set up immediately, and I very much hope that the Minister will give me a positive reply to this proposal, which would do much to alleviate the concerns.
Children with low incidence needs may, by definition, be fewer in number. That cannot be an excuse to pass a Bill which would potentially prevent many from getting the support that they need. I urge the Minister to do more than just recognise that there is a problem. He must find solutions before this Bill is allowed to pass. I beg to move.
Baroness Howe of Idlicote
My Lords, I support the amendment in the name of my noble friend Lady Wilkins, as I did with regard to her amendment in Committee. I agree with my noble friend and share her concerns on specialist support services for children with low-incidence needs. I also agree that the Minister has not yet, I fear, provided a satisfactory response on these important concerns. I also reiterate the point made by my noble friend that the Government’s desire to pass the Bill speedily must not be at the expense of children with low-incidence needs.
In Committee, I highlighted my concerns about the impact of the Bill on the range of services delivered by specialist support services outside school. For example, many services provide pre-school support directly to families and children to aid language acquisition and to teach Braille. Support may also be given to ensure that children with visual impairments have the necessary independent living skills. Such support is essential if we wish to ensure that children with low-incidence needs are able to fulfil their potential and live independently later in life. The cost of failing to provide such support is likely to be prohibitive to individuals with low-incidence needs and also to the Government’s welfare budget. I am concerned that such services may be compromised if the schools budget for specialist support services is cut when a large number of schools convert to academies. When it comes to low-incidence needs, surely it is vital that our limited resources are pooled and used effectively to fund the services and ensure the best possible value for money.
I am concerned also that these unintended consequences will result not only in wastage but also in very poor value for money. These concerns are shared by the Special Education Consortium. I regret that the Minister did not address the concerns that I expressed in Committee that such preschool services would be undermined by the Bill. I strongly urge him to do so today.
Lord Low of Dalston
My Lords, I will speak briefly given the hour. Despite the reassurances received by the noble Baroness, Lady Wilkins, there remain a number of concerns that need to be addressed. The specialist services of which the noble Baronesses, Lady Wilkins and Lady Howe, have spoken are at the heart of special education provision. As we have heard, they include support for mainstream teachers, Braille teaching and mobility instruction for visually impaired pupils, communication support, advice on equipment and speech and language support for pupils who are deaf or hard of hearing. I declare an interest as a vice-president of the RNIB, an organisation that is very concerned about the maintenance of services for blind and partially sighted pupils.
The services that I have mentioned are examples of those that meet low-incidence needs. The LEA is a large enough unit for these needs to attain a critical mass and generate demand for a level of support services that is capable of being sustained. The academy system is much more atomised and fragmented, and much less able to sustain a critical mass of support services. Of course, academies can form consortium arrangements, and the Minister spoke of partnerships; but it will inevitably take time to get these up and running, and in the mean time local authority arrangements are likely to become increasingly vulnerable as academies, with their attendant funding, opt out of the local authority system. Therefore it is absolutely essential that the Government make clear in detail exactly how specialist support services will be sustained in the new environment.
Baroness Grey-Thompson
My Lords, I support the amendments tabled by the noble Baroness, Lady Wilkins. The noble Baroness, Lady Campbell, wanted to speak in support of the amendment, but could not make the late hour for health reasons. I am therefore pleased to take her place, after taking her considerable briefing.
I share her concern about losing essential support for disabled children if we do not ensure that the Bill delivers an appropriate system to do the job. I am a member of the All Party Parliamentary Group on Disability, chaired by the noble Baroness, Lady Campbell. The group has frequently been told that too many disabled children are not getting the specialist support that they need at school fully to engage with the curriculum. I am concerned that the Bill may have the unintended consequence of worsening this problem. I will give an example. The National Deaf Children's Society identified a case in the West Midlands in which a small all-through school became an academy. It admitted a disabled child who required significant levels of support. However, the academy had difficulty in funding this support as it took up a disproportionate amount of its special educational needs budget. As a small school working with one deaf child, the academy was unable to access the economies of scale that would have made the support for this child affordable.
On a more positive note, I am pleased to hear about Waltham Forest local authority, which decided to adopt a different funding model when a delegated structure similar to that proposed in the Bill failed to support the needs of disabled children. Now, a local special school receives its funding to operate an outreach service for all other local schools free of charge.
The lesson from Waltham Forest demonstrates how important it is to think through the impact of any changes to funding, especially for support services, before proceeding. I believe that this amendment helps us to do that and to avoid unnecessary damage to the education of disabled children. I urge the Minister to respond positively to it.
The Earl of Listowel
My Lords, I rise briefly to support the amendment and apologise for not being present when the noble Baroness moved it. I know that, with his wife’s experience as a volunteer, the Minister is familiar with these issues. Recently I spoke to a teacher who had completed her first year working with teenagers with autism and she told me how exhausted she was. She had spent an outward bound weekend with them; they had been doing a school play the previous evening; and she had had to complete the school reports. She was utterly exhausted and told me how challenging these children could be. However, she said, “I love these children. It’s so satisfying to do this work”. We need to ensure that the professionals who work with these children get the best specialist support available. I share the concern raised by my noble friend Lord Low about the dangers of atomisation and fragmentation, and I know that the Minister will also very much bear that in mind. We all have to work in partnership if we are to achieve the best outcomes for these young people.
Baroness Sharp of Guildford
My Lords, I join other noble Lords in supporting the noble Baroness, Lady Wilkins, in this amendment. Yesterday, when we had a debate about numbers and needs, we raised some questions about the funding formula. We also spoke about the ready reckoner which the Government have produced and which is on their website.
Looking in more detail at the ready reckoner, they make it quite clear that home-to-school transport, educational psychology, SEN statementing and assessment, monitoring of SEN provision, parent partnerships, prosecution of parents for non-attendance, individually assigned SEN resources for pupils with rare conditions needing expensive tailored provision, and the provision of pupil referral units or other education for a pupil will all be paid for by retained funding by the local authority, but the other general support services—this is the issue with which we are concerned here—will fall under the part of the funding that will be dispersed among the schools, or certainly the academies. Looking at the list of what comes under the local authority central spend equivalent grant, which is the one that is going to be shared out among the schools, the services and costs that are funded from local authorities’ schools budgets include things such as museum and library services, the costs of the local authority statutory and regulatory duties, and so on. In other words, it would appear that the Government currently envisage that this funding should come not just from the dedicated schools grant but from general funding which comes out of council tax, plus some money from the Department for Communities and Local Government which goes towards, for example, the funding of museums and libraries and outdoor education services.
There are very real reasons to worry. Yesterday, I asked the Minister whether we were raising the expectation of many of these schools that they would receive rather more funding than they will actually get. Looking in detail at the advice given on the website, I think that there is more to it than that. Questions arise about whether this money comes within the schools budget. As I said, we are looking at the fair funding formula and the problems that dispersing this money will cause local authorities. It will give them very real problems in providing those support services because of the loss of economies of scale and so on.
I also endorse what the noble Baroness, Lady Wilkins, said about the problems of following through on complaints in relation to the YPLA. As she said, the Minister suggested that voluntary organisations might do the monitoring. That is a very unsatisfactory reply. I asked the Minister yesterday about the capabilities and capacity of the YPLA which is a new organisation that is only just off the ground. It is still finding its feet and I wonder whether it has the capacity, as the number of academies grows, to fulfil these functions. I press the Minister to think further about the proposals made by the noble Baroness.
Lord Hunt of Kings Heath
My Lords, first, I thank the Minister for his letter to my noble friend, which has been extremely helpful and has very much informed our debate. As I said in an earlier debate on SEN, the response that academies can buy SEN support services from their local authority, from neighbouring authorities or from other providers is in itself unexceptional. It is absolutely right that academies should be able to do that.
There could be a problem in two cases. The first, which was mentioned by the noble Baroness, Lady Grey-Thompson, is where an expensive support service is required for an individual student. Secondly—I am thinking of our previous debates on the role of governing bodies—I should have thought that when academies are first established their governing bodies will be very cautious when it comes to budget making. That will be entirely understandable. I can see that budgets for expensive special support services will be cut back as it will be the natural thing to do. By the time they realise that that was probably a mistake because they are faced with demands that must be met, the risk is that the kind of high quality services funded at present by local authorities will have gone out of business. That is why the Government need to reflect carefully to ensure that good services are protected.
I know that the noble Lord has talked about partnerships and we would all like to hear more about that, but this is an area in which there could be a positive role for local authorities. Again I urge the Government to think carefully. If they do not take action in this area there will be a decline in the special support services that are required. Surveys will be undertaken and because the Government are taking local authorities out of the picture the problem will come right back to Ministers. They may think that in developing this new system they can withdraw and say that it is the responsibility of individual academies, but I can tell the Minister from bitter experience that in the end it will come back to Ministers who will have to have a response.
Lord Hill of Oareford
My Lords, I will be fairly brief because in our earlier exchange I accepted the point made by the noble Lord, Lord Hunt, that as regards low-incidence SEN there is an issue that we need to look at.
I am grateful to the noble Baroness, Lady Wilkins, for referring to the work that my officials have been doing with her and the National Sensory Impairment Partnership. She made a powerful case, and I shall reflect on what she said and perhaps talk to her further about it. If she can spare the time we can meet officials to consider practical ways forward. I do not have an answer tonight and I cannot go further than I should, but I hope that she and others will accept that on the issue of SEN I have sought to be sensitive. I am not dismissive and if the noble Baroness will agree to meet, we can discuss her concerns. If she thinks that that is a fair and reasonable way forward, perhaps she will withdraw her amendment and we can meet outside the House.
Baroness Wilkins
First, I thank all noble Lords for their support for the amendment and for recognising and emphasising what a serious concern it represents. I am most grateful to the Minister for his awareness and the trouble that he has taken. I will definitely take up his offer to meet his officials, and I hope that we can reach a satisfactory conclusion. With that, I beg leave to withdraw the amendment.
“Monitoring provision in Academies for children with special educational needs
(1) The Secretary of State shall, in respect of each academic year, prepare a report and lay it before Parliament on the quality of educational provision made for children with special educational needs who are registered pupils of Academies.
(2) The report shall record the number of children with statements of special educational needs made under section 324 of the Education Act 1996, and state whether or not this figure is reasonable given the characteristics of pupils on the rolls of Academies and maintained schools.
(3) The report shall state what action the Secretary of State intends to take to improve the quality of provision of children with special educational needs in attendance at Academies.”
Baroness Garden of Frognal
I move Amendment 22 and speak to Amendments 45 and 46, also in this group, which are in my name and those of my noble friends Lady Walmsley and Lady Sharp. The amendments complement those that we were discussing earlier under the amendment of the noble Lord, Lord Hill—Amendment 11. We warmly welcome what the Government have done in their amendments, but feel it desirable to go a bit further for the avoidance of any doubt. That is why we have tabled the amendments. I give credit to the Minister and the Government for responding so fully to us and others on SEN matters.
Amendment 22 provides that the number of SEN statements is monitored, so that corrective action can be taken if the proportion of children in academies rises significantly. It was drafted with the perspective of a parent of a child with special educational needs in mind. Much has been done in recent years to reduce the need for parents to see the statement as the only guaranteed way to ensure that their child gets a special educational provision that he or she wants. A major inquiry by the House of Commons Education and Skills Committee addressed that topic. Change brings uncertainty, which will almost inevitably be the case if a large number of schools move to the academy sector. Parents, whose views are pivotal in the assessment process, are likely to want their children's provision to be safeguarded in a statement, so that they know what will be guaranteed, rather than rely on oral or even written commitments from schools that the assessed needs will be met.
It would be wrong to put limits on how many children can be statemented, but there is probably not much that can be done in the short term. Clearly, this issue needs to be monitored, and the proposal here is for an annual report, as proposed by my noble friend Lady Williams. As the Minister said, that annual report is acquiring biblical proportions. We are asking for some straightforward statistical information about numbers of SEN pupils in academies, along with the numbers of those with statements, so that the proportions can be monitored. That information should be readily available. The amendment also proposes a review and recommendations from the Secretary of State on the quality of provision. It is a probing amendment to see whether the Government share that concern and, if so, how they will address the specific concerns of parents of children with special educational needs attending academies who seek to have them statemented.
Amendments 45 and 46 take us back to government Amendment 11, which is drafted to meet concerns about academies meeting their responsibilities for pupils with special educational needs. The letter on the amendments that the noble Lord, Lord Hill, sent to Members of the House states that,
“my starting point has been to try to secure parity between Academies and maintained schools in the requirements placed on them in respect of SEN”.
That approach is of course welcome, but does not take into account the totality of arrangements for special educational provision in an area and the arrangements to support children outside school. It looks at one very important aspect, the role of school governors, but not the whole picture.
Amendments 45 and 46 attempt to redress the imbalance in the Minister's approach. The Minister's amendment refers to the governing body’s responsibilities under Chapter 1 of Part 4 of the Education Act 1996. Noble Lords may well recall that that has its origin in the Education Act 1981, which implemented the report of the noble Baroness, Lady Warnock, on special educational needs. It is interesting to note that that was commissioned by the noble Baroness, Lady Thatcher, when Secretary of State, received when the noble Baroness, Lady Williams, was Secretary of State, taken through the Commons by the late Lord Carlisle, with the Labour Opposition speaker being the noble Lord, Lord Kinnock, when Clement Freud was the Liberal Party speaker—an impressive, distinguished and diverse cohort, I am sure that your Lordships will agree.
The 1981 Act was innovative in that it was the first legislation to give specific responsibilities to governing bodies and head teachers. It followed Lord Carlisle’s 1980 Education Act, which required working governing bodies for all schools. It is therefore worth examining why certain responsibilities were given to governing bodies, why other responsibilities were given to local authorities and the effect of the government amendment on those local authority responsibilities if Amendments 45 and 46, or something similar, are not adopted.
Amendment 45 applies to Section 321 of the 1996 Act, which is entitled,
“General duty of local education authority towards children for whom they are responsible”.
It is the first of the sections on the identification and assessment of children with special educational needs that enable local authorities to statement children whose needs must be safeguarded. Section 321 places responsibility on the local authority to identify children in local authority maintained schools. The reason why the responsibility is placed on the local authority is to enable a local authority-wide approach to provision. The level of statementing varies widely between authorities, not because of anything to do with the efficiency of the local authority, but because of collective decisions about what sort of provision to make for what sort of need locally. Indeed, inefficiencies might well occur if this were attempted nationally, rather than locally, as matching need to provision is best done locally, or, indeed, if schools chose who they wanted statemented without reference to a local policy.
The code of practice on special educational needs puts responsibility on the school for the initial assessment process through the school action and school action plus stages, but it is done within an agreed local framework that matches need with provision through a local authority-wide assessment policy. Section 321 permits other bodies to inform the local authority of children for whom the authority may have to determine the special educational provision. Academies are included under Section 321(3)(c). The Minister’s amendment does not require academies to comply with any local authority-wide strategy for the identification and assessment of children with special educational needs as there is no specific duty on maintained school governing bodies to do so. Amendment 45, however imperfect, attempts to meet that concern.
To clarify, the point is that if an authority has one or two academies with perhaps 5 to 10 per cent of the student population, then non-compliance by academies on the initial identification of children is perhaps not of great concern. However, if the proportion rises to a critical level—perhaps 20 to 30 per cent—it will become difficult for the local authority to manage and to take responsibility for an authority-wide identification process that matches local provision. This was recognised in the previous experiment in allowing schools to opt out of their local school system through grant-maintained school status and, right on cue, the Education Reform Act 1998, which was introduced by the noble Lord, Lord Baker, brought grant-maintained schools into the equivalent provision in the 1981 Education Act. This is a probing amendment to ask why the Government have not taken the lessons from the 1988 legislation.
The same argument applies to Amendment 46, which amends the other specific local authority duty in relation to schools for children with special educational needs. Once the authority has made a statement of special educational needs, it is right and proper that it should monitor the provision made for a child in school and can take responsibility for the use of any additional resources allocated to a child to support his education. If a child is in a maintained school, there is no need to have specific legislation allowing the authority to monitor the child’s education. Section 327 is entitled,
“Access for local education authority to certain schools”.
It gives the local authority the right to access at any reasonable time one of the authority’s children who has been placed in a maintained school in another local educational authority area or in an independent school. The latter will include academies. Will the Minister confirm that that is the case and also indicate how the local authority can exercise this responsibility should an academy not wish to comply? I look forward to the Minister’s reply and beg to move.
Lord Astor of Hever
I remind noble Lords that we are on Report and encourage them to keep their speeches as short as possible.
Baroness Whitaker
My Lords, I rise to speak briefly to Amendment 44A, which rather oddly is in this group. The arguments I made to ensure that the design of academies in new or refurbished buildings must be conducive to good education and not a waste of public money in Committee are still the same. I will not repeat them now.
I have tabled this amendment again because the answer from the noble Lord, Lord Wallace of Saltaire, although helpful, did not deal with what general minimum design standards would operate, and no letter was forthcoming from the department to amplify his, perhaps I may say rather vague, response that he had no reason to doubt that they did. I would not press for a statutory requirement if it were definite that the free schools network would include such design advice in the general advice that the Government are funding them to give to aspirant academy-makers.
The noble Lord cited the law covering access for students with disabilities, which was welcome, but I am sure that groups of parents, teachers or others need to get themselves guidance on how the broad provisions of the Disability Discrimination Act and successor obligations under the Equality Act should be translated into design.
The Government’s approach to housing, in their letter to me of 15 June, says that they will issue guidance by,
“setting out minimum environmental, architectural, design, economic and social standards”.
Are academies where children will spend a large proportion of their time at a formative period of their life really so much less important?
Lord Low of Dalston
My Lords, I shall say a brief word about Amendment 52, which is tabled in my name, and I hope that I can perhaps win the prize for the briefest speech of the evening. The object of Amendment 52 is to impose the SEN obligations on existing academies, which we already discussed to a fair extent when we considered government Amendment 11. The Minister made it clear that the SEN obligations would be inserted into the funding agreements of existing academies. The only point of unclarity that remained was whether we would have to wait for the existing agreements to run their course or whether the obligations could be inserted before that. If the Minister accepts the spirit of this amendment, it would enable the obligations to be inserted into the funding agreement within 12 months of the Act coming into force. I urge that that approach be adopted, rather than that we should be made to wait a number of years for existing agreements to run their course.
Lord Howarth of Newport
My Lords, I should like to speak to Amendment 44A, and I thank my noble friend Lady Whitaker for once again tabling the issue of the design of school buildings on Report. To take care to design school buildings well is a mark of respect for school communities. It is also plain common sense, not only because of its effects on the morale of the school community but because of its benefits for practical functioning and, very importantly, for the benefit of disabled children in schools. Inclusive design that enables disabled children to be fully integrated into the whole life of the school community is design that is good for everybody. This is not simply a matter of aesthetics but of fitness for purpose.
By no means all the schools that have been built under the Building Schools for the Future programme have been exemplars of good architecture and good design, but a number of them have been very good indeed. One of the virtues of this programme has been that it has encouraged some of our leading architects in this country, who are of course leading architects in the world, to return to school-building in their practices.
If they are retained, minimum design standards will do much to ensure that the schools that are built in the future are built to good design standards. We did not get a clear answer in Committee—I make no criticism whatever of the noble Lord, Lord Wallace of Saltaire, who was unable to clarify the point—as to whether the Government intend to retain minimum design standards. I hope that they will be able to give us that assurance this evening.
I have to say that I draw no encouragement from the Secretary of State’s Statement on education funding on Monday after we finished Committee. In the course of that long statement on school buildings, the only references he made to design were disparaging. He picked out care to ensure good design as an instance of what he regarded as undue bureaucracy, cost and delay. He cited as instances of wasteful process that,
“local authorities involved in this process have employed … an enabler from CABE, the Commission for Architecture and the Built Environment—another non-departmental public body”.—[Official Report, 5/7/10; col. 40.]
It is a great pity to dismiss CABE. The enablers that CABE has ensured have been available to assist people who face the difficult and complex responsibility of commissioning and securing good new school buildings. CABE enablers are design professionals who generously and public-spiritedly are willing to give their services for modest fees, well below market rates, to enable people facing these challenging, difficult and important tasks to know better how to handle them.
A moment later the Secretary of State said that,
“local authorities were expected to engage a design champion”,—[Official Report, 5/7/10; col. 41.]
Design champions exist in some local authorities, although they are not compelled to have them. These are people who are already there, whether as elected members or as senior officers, whose role in the local authority is to advocate good design. Given the enormous power that local authorities have over the built environment for good or for ill, through planning and through the procurement of buildings, it must be a good thing that they appoint someone from within their midst to prompt and remind them all the time of their responsibility to ensure that the buildings that are built under their auspices are well designed. I suspect that the Secretary of State had not understood what these functions were when he ridiculed them.
Later in the Statement, the Secretary of State went on to announce that he was going to appoint a “capital review team”. Among the people he named as members of that team is Sir John Egan. Sir John is, of course, deeply versed in the issues of building design and quality, and will be a most excellent member of that team. I am more concerned to see that the group operations director of Dixons Store Group and the director of property services at Tesco are included in the group. I know nothing of these individuals. They may be the most enlightened people, but I do not think that the most ardent admirers of Dixons and Tesco—and they have many good qualities—would claim that they have been patrons of fine architecture: rather the reverse. The banality and triteness of the design of modern supermarkets is a sad and indeed disgraceful falling away from the best of our historic traditions in the design of department stores and shop fronts.
The Secretary of State says that he wants buildings to be built more quickly and to look at the scope for savings. The reality is that a little time taken to achieve good design is an investment that richly pays for itself in reduced lifetime costs of the building, in the better performance of all those who work in it, and in the quality of life for years ahead of the people in the community immediately around it. The Secretary of State is a civilised man with a sense of history, and so of course is the Minister, the noble Lord, Lord Hill. I hope that they will think more deeply about their responsibilities in this area.
The Earl of Listowel
My Lords, I wish to speak to Amendment 44A. Your Lordships may recall—and I hope that I recall it correctly—the head teacher of a new academy school saying, “We didn’t need to build a playground for this school because we’re going to be working our students hard in the school premises”. I hope that the Minister will bear in mind, when he considers the issues of minimum standards, that children need to have a playground area. It is important in tackling obesity, in socialisation, and as a release from study so that the children can better concentrate on their work. Research indicates that the amount of time children have for play has been picked away at over the years, so I hope that he will keep in mind the importance of school play areas.
Lord Greaves
My Lords, I shall be brief. As the noble Lord, Lord Howarth, and the noble Baroness, Lady Whitaker, know, I support a great deal of what they have said about design. The only question I have is on the Building Schools for the Future programme. Why are so many of those schools externally drab at best, and in some cases quite hideous? Given the apparent pause in school building, would it not be a good idea if that was used to ensure that, when building starts up again in a big way, as no doubt it will in the future, the external design of many of the buildings will be much better than the ones that have been erected in the past two or three years?
Lord Hill of Oareford
My Lords, Amendment 22 provides that an annual report should be made to Parliament on the quality of SEN provision in academies and seeks to ensure that academies are effectively doing their fair share. As we have discussed, I have sympathy with those aims but I believe that they will be delivered through different processes. Academies will continue to be, as they currently are, accountable for making provision for children with SEN and subject to the same accountability mechanisms as maintained schools. These mechanisms include published Ofsted reports that give judgments about the quality of SEN provision; the publication of attainment data, including for SEN pupils; and school census returns from which comparable data are published about the numbers of SEN pupils, including those with statements, in different types of schools. There will not be any reduction in the amount of information about academies that we make public but, as regards the report to Parliament—which we have spoken about in a different context—we want to reflect on the quality of SEN provision in academies.
On Amendment 44A, I take the points that have been made about design. I apologise to the noble Baroness, Lady Whitaker, that she has not had her letter sooner. We have been awaiting the announcement of an independent review of capital investment—this relates to the point made by the noble Lord, Lord Howarth—which is due to report to Ministers in mid-September. As the noble Lord pointed out, that review will include consideration of school design requirements and school premises regulations. I know that both noble Lords have strong views on that—the noble Lord, Lord Howarth, also has strong views about its membership—and their points on the design aspect ought to be made to the review. I am sure they will be. I accept totally the case that has been argued that the environment in which learning takes place must be conducive to education as far as possible, and that good quality buildings, classrooms and equipment are necessary for children to learn and to ensure that school is a place where they feel happy and secure in their learning.
No one is arguing for unnecessarily prescriptive building and design requirements—this may be a point made to me by the noble Lord, Lord Howarth, in a different setting—particularly in times of straitened financial conditions. The balance must be to ensure that we have effective regulation which delivers the design features that noble Lords have talked about but which is not bureaucratic, cumbersome and wasteful. There is a balance to be struck and we need to consider the evidence on it.
The core point is that it is our intention that the same standards should apply to academies as to maintained schools. As my noble friend Lord Wallace said in Committee, all schools are required to comply with the requirements of the Disability Discrimination Act 1995 to draw up and implement accessibility plans which provide for the implementation of improvements to school premises to accommodate existing and future disabled pupils within a reasonable period.
Amendments 45 and 46 would require academies to alert local authorities when a pupil is identified with SEN. This is already a requirement on academies. Section 317 of the Education Act 1996 imposes an obligation on governing bodies of maintained schools to use their best endeavours to ensure that special educational provision is made. That would include notifying the local authority where necessary. Obligations under Section 317 are replicated in the current academy funding agreements and will continue to be replicated in the new academy arrangements. I can pick up on more detailed points with my noble friends.
I turn briefly to Amendment 52, tabled by the noble Lord, Lord Low. I understand the purpose of the amendment, but there are legal reasons, as we touched on earlier, why the Secretary of State cannot take powers to vary the contracts unilaterally. They have been entered into willingly by both parties, so the retrospective change that the noble Lord, Lord Low, requests would be difficult. My main concern in thinking about SEN has been to ensure that, where there is a policy change and where there could be a reasonable number of schools converting, all those new academies are put on an equal footing. I believe that we have achieved that. It is a significant step forward which I know has been welcomed by the noble Lord. Existing academies which move to the new model funding agreement will also have to comply with our new requirements. Not all existing academies will have to wait for the whole period. Those which move to a slim-line funding agreement will automatically be covered by the new requirements.
I hope that that has dealt with the main points that have been raised.
Lord Puttnam
I thank the Minister for giving way. Perhaps I may make a general point which I suspect the noble Lord, Lord Baker, and the noble Baroness, Lady Perry, whose experience is greater than mine, would agree with. Teachers are peculiarly sensitive people. They are used to being let down; they are used to being underappreciated. I used possibly the wrong word earlier when I said that a lot of what is going on at the moment is clumsy. I cite an example that my noble friend Lord Howarth mentioned. Use of Dixons and Tesco as advisers on school building gives the impression that there is an interest in shelf space as opposed to aesthetics. That is not a good impression. I suggest to the Minister—who has done very well during the passage of this Bill—that at every single turn he thinks through the message that is being sent out to the professionals. It is very important that the Secretary of State’s intent is understood, that it is couched in terms that they can empathise and sympathise with and that they do not feel that they are being bullied or taken advantage of.
Lord Hill of Oareford
I take the point that the noble Lord makes; I take also his point about aesthetics. He and the noble Lord, Lord Howarth, mentioned Tesco. I had better not be drawn into commenting on its designs since it has kindly agreed to serve on the review, but one thing that I know about it is that it is brilliant at finding ways of delivering what it is tasked to deliver in the most efficient and cost-effective way, learning each time and driving down costs. If one can find an approach that does not send those messages about aesthetics but enables us to deliver more well-designed school buildings for a lower cost, and if, as some people allege, Building Schools for the Future has been running 30 per cent over budget—
Lord Knight
I am most grateful to the Minister for giving way and I shall be very brief. Will he ensure that the expertise within Partnerships for Schools is used by this review? Contrary to what the Secretary of State said in his Statement on Monday, Partnerships for Schools has met every one of its targets in the past three years—he said that it had not met any of them—delivering good design, really good value for money and great learning environments.
Lord Hill of Oareford
We work closely with Partnerships for Schools. I know that the noble Lord has direct experience of that body and I shall bear his points in mind. I shall also be less long-winded next time. I hope that I have given some answers to the questions raised and that noble Lords will agree not to press their amendments.
Baroness Garden of Frognal
My Lords, I thank all noble Lords who have spoken on a variety of topics in this short debate. I also welcome the Minister’s reassurances about monitoring the quality of provision for SEN. I will read in more detail in Hansard his reply to the amendments. Meanwhile, I thank the Minister for his reply and beg leave to withdraw the amendment.
Baroness Massey of Darwen
“(4A) Before making an application under this section, the governing body of a school—
(a) must consult the local authority with regard to the appropriate balance of educational provision in the local authority area, and(b) have the school’s intended policies on curriculum, admissions and employment approved by the Secretary of State for Education.”
Baroness Massey of Darwen
In moving this amendment, I shall also speak to Amendment 33 and win the second prize for the shortest speech. Many issues have been raised about these amendments, both this evening and before, but important as they are, I do not intend to go into detail or spend much time on them.
Amendment 23 is about consultation and schools’ intended policies regarding the curriculum, admissions and employment. Local communities and local stakeholders should be involved in decisions about what type of school should be provided in an area—points which have already been raised and will be raised again. Taken with my next amendment, Amendment 33, a consultation process would allow faith schools time to consider whether they wanted to retain their religious character or become inclusive academies. I wish to have the Secretary of State for Education approve the curriculum, admissions and employment policies because I foresee dangers affecting the rights of children to a broad and balanced curriculum and to admission to particular schools—as discussed earlier—and dangers to the rights of workers to be selected or promoted.
This is partly a faith schools issue, but partly not. I acknowledge the remarks made earlier by the right reverend Prelate the Bishop of Lincoln about some excellent faith schools, but that is not the point. The school curriculum should provide all children with the entitlement to develop to their full potential in UK society. To do that, they will need information, skills, and the development of aspiration. Academies do not have to follow the national curriculum, and those of a religious character will be able to discriminate on religious grounds against pupils and staff.
The notion of free schools fills me with some horror. I have terrible visions of children being taught, or rather indoctrinated, in some fanatical ways, and not just religious, in limited and unsuitable premises. The responsibility for offering a balanced and broad-based curriculum could be neglected or avoided. There are curriculum concerns with regard to, for example, the teaching of creationism. Will the Minister reassure me that all our children will have as their right a balanced curriculum that will fit them for life?
On Amendment 33, the Academies Bill forces state-maintained schools with a religious character to automatically become independent schools with that religious character, permanently removing the possibility for state-funded religious schools to become inclusive academies. That removes choice and freedom from governing bodies, running counter to the spirit of the Bill, which aims to increase school autonomy. This could mean a proliferation of state-funded faith schools that are their own admission authorities and more likely to be unrepresentative of their surrounding areas than faith schools where the local authority is the admission authority. A report on community cohesion in Blackburn by Professor Ted Cantle describes religious schools as,
“automatically a source of division in the town”.
Opinion polls suggest that the public are aware of these issues, with 64 per cent agreeing that,
“the government should not be funding faith schools of any kind”.
Can the Minister give me any reassurance on these issues? I beg to move.
Lord Hill of Oareford
My Lords, we had a good debate in Committee on the importance of consultation, as a result of which we have thought again, and we will come to a group of amendments that deal with that issue. We have accepted that we need to make explicit on the face of the Bill the requirement that schools should consult. Although we recognise the important role that local authorities can play—as the noble Baroness, Lady Massey, knows—we are keen, so far as the consultation with local authorities is concerned, not to be prescriptive.
On the second element of the first amendment, it is certainly the case that the school will have to agree its admissions policy with the Secretary of State, but that would be at the point of entering into the funding agreement, just as has always been the case with academies. As she knows, I share her concerns about creationism, but one of the core aims of the policy is precisely that the Secretary of State should not dictate to academies what they should teach. The whole direction of government policy is to interfere less and trust teachers and head teachers more. It is not easy and a lot of debates that we have had have been around the tension between trusting people and being worried about what happens if you trust people and things go wrong. I fully accept that if you trust people things do go wrong, but that is the direction that we want to try to go in.
On the point that the noble Baroness made on employment, we want academies to have freedom around their employment terms and conditions. We do not want the Secretary of State to micromanage all that from Whitehall. As for faith schools, which we touched on briefly in earlier amendments, the Bill simply seeks to maintain the status quo. We are not seeking to make it easier for there to be an increase in faith schools or to change their character, but we believe that there should be the same chance to become an academy as any other maintained school. We do not think that any faith school seeking to convert should have to go through an additional application simply to stay as they are.
We do not propose to prevent academies from seeking designation after conversion, providing that they meet the relevant tests, just as will be the case for maintained schools. However, any new faith academies, including the free schools, about which I know she has some concerns, will have to balance the needs of children, both with a faith and with none, and admit at least 50 per cent of their intake without reference to faith. I hope that that is of some comfort to the noble Baroness and that it responds to some of the points that she made. I also hope that she will feel able to withdraw her amendment.
Baroness Massey of Darwen
My Lords, I thank the Minister for that response. I am somewhat encouraged. I think that we need more discussion on the issues around faith schools. My concern is that the welfare of the child is paramount and that they are entitled to certain things in a curriculum which may be excluded by certain types of school. I am very happy to discuss this with the Minister. In the mean time, I beg leave to withdraw the amendment.
Lord Whitty
“( ) Before making an application for an Academy order, the governing body shall, over a period of at least 6 weeks during term time, consult the following on whether to make the application—
(a) pupils at the school,(b) the parents of pupils of the school,(c) the parents of pupils at any other school from which at least 10% of the pupils have come in the previous 3 years,(d) staff at the school,(e) trade unions representing staff at the school, and(f) the governing body of other schools within its area which might reasonably be considered to be affected by the making of an Academy order.( ) In that consultation, the governing body will make available in writing at least the following information relating to the proposed Academy—
(a) details of the proposed Academy arrangements,(b) details of the proposed governance arrangements including details of the directors of the company which will enter into the Academy, arrangements and details of the composition of the governing body,(c) details of the arrangements for the curriculum, for admissions, for special educational needs, for pupil discipline and exclusion and for complaints,(d) details of any arrangements by which any other person will provide the education the proposed academy including details of the extent to which such arrangements will allow for that other person to make a profit from doing so,(e) details of any additional money which would be available to the school (either as capital or revenue funding) if it became an Academy, (f) details of any additional obligations which fall on the school if it became an Academy, and(g) details of the criteria which the Secretary of State would apply in deciding whether to make the Academy order.The governing body will take all reasonable steps to enable suporters and opponents of the proposal to circulate materials relating to the proposed application for an Academy order to other consultees.”
Lord Whitty
My Lords, in moving Amendment 25, I shall also speak to Amendments 26A and 28 in my name and to Amendment 26 on behalf of my noble friend Lady Royall, which I support. I shall also give some comments on the government amendment and the amendment to that. It is a difficult time of night to come to what I regard as one of the most important aspects of the process of setting up academies that is implied in this Bill. I shall try to be short, but I shall not be as short as all that.
We have had some debates on this matter but I fear that the Government, even with the amendment that they have put down for today, have moved nowhere near as far as is necessary. Whether we are in favour of academies or not, whether in general or in a particular instance, we would all recognise that the conversion of a school that has hitherto been a maintained local authority school into an academy is a momentous event. It is important for the pupils and parents of the school as well as for the staff of the school, which will have a different relationship with the local authority that no longer has oversight and no longer provides most of the services or administrative support. That is particularly important for the smaller schools in this category. It will change that relationship and there will be a different sort of relationship, both in terms of the powers of the governing body and the Secretary of State. After all, although the academies programme is portrayed as being a devolution of power, in reality these schools had previously been governed or overseen by a local authority and are now going to be funded, regulated and to some extent controlled by central government. That is not a move that either of the coalition parties was advocating to the electorate a few months ago—but there we go.
If this Bill goes through in more or less its present form, as undoubtedly it will, there is no current provision in the present draft of the Bill for consultation. I submit that there is a requirement for consultation at two points. There should be a requirement on the governing body proposing the change and a requirement on the Secretary of State in taking a view on that proposition. Neither is in the Bill at present. It is important, therefore, that we lay down requirements for consultation at both points. My first amendment does that in some detail. It may be argued that we do not need that degree of detail, and in normal circumstances I would probably have agreed. However, there is no general proposition coming from the Government that the governing body should consult.
The pupils are important—not only the current pupils and their parents but future pupils and parents. It is the whole community; it is schools that could be affected by the abstraction of one outstanding school from the community into a different form of control that will have an effect on the relative status and indeed, in practice, on the relative funding for that school against other schools in the neighbourhood. This could have profound effects on the town. This is why by and large I am in favour of maintaining local authority oversight rather than bringing in central government.
If we are going down this road, however, there needs at least to have been consultation with the parties that will be desperately affected by it. That consultation needs to set down what the broad provisions of the new arrangements are going to be. What will the governance of the school be? What will the changes in the curriculum be, broadly speaking? What other parties might be involved in the provision of education to the children of the neighbourhood? What financial provisions are there going to be, and what are the new obligations on the school?
My amendment sets all that out. It is conceivable to argue that that should be in a code or in secondary regulations rather than in the Bill. I would normally accept that argument, but only once the Government had come to the position of saying that the primary requirement for consultation is laid down in the Bill itself.
It is also important that the Secretary of State has some obligations in this area as well as the governing body. The Secretary of State is making the final decision. He is drawing up one side of the agreement both on funding and on the other provisions that will come in the charter for the school. It is therefore important that we have a Secretary of State able to consult independently with the major parties, particularly with the local authority.
My second amendment relates to the role of the local authority. Even those local authorities that are by and large in favour of the academies programme need to have the ability to tell the Secretary of State what the implications of this will be for education provision throughout their area of jurisdiction. If an outstanding school in a town is being taken out of local authority oversight, the local authority needs to have the ability directly to tell the Secretary of State or his officials what the effect of that will be. We therefore need to have a secondary level—or possibly a more important level—of consultation about who the Secretary of State should speak to.
I have stripped that part of my amendments down to the absolute minimum. I do not list anyone else except the local authority. I expect the local authority to have taken into account both the consultation that the governing body will have conducted and its normal relations with parents and providers within the local authority area. If localism and devolution mean anything, the views of a local authority that is losing an outstanding school must be taken into account before the Secretary of State can reasonably sign off on that academy order.
My amendments, taken together with Amendment 28, which deals with the Secretary of State setting out the criteria by which he has judged whether the order should be issued, would give all the parties to the agreement—all the parties to the school, if you like—the opportunity to give their views as well as an understanding of what is involved and what changes will affect their children and their neighbourhood, along with a balanced view to be taken by the governing body in the first instance and by the Secretary of State. Without specifically providing that the Secretary of State should consult local authorities, that relationship breaks down and this whole provision begins to look as if it is likely to lead to conflict rather than to a smooth change.
Everyone in this Chamber knows that I am not particularly in favour of the process, but if we are going to have it, we need to do it in a way that ends up with the maximum possibility of co-operation between all those concerned. To do that, you need consultation up front before the final decision is taken.
I fear that the Bill does not do this. We need to ask why. I suspect that the good intentions of the people in the education team—the Secretary of State, the noble Lord and others—mean that they would, in slightly different circumstances, have written these provisions into the Bill. The problem is that the Secretary of State said, “All this has to be started by September. We have to write to several thousand schools, get their letters in and decide by September”. That timetable is complete nonsense. It has left the Government very exposed. I am sorry for them—I am sorry for the Minister that he has to defend it—but it is not sensible. If we want in two or three years’ time to have a large number of academy schools without conflict and without outstanding issues still to be resolved and blamed on the Secretary of State, let us have that consultation and engagement up front. If the Secretary of State should somehow back off the September date—I promise not to make a big thing of it—we would have plenty of time to sort these things out. I beg the noble Lord to talk to his colleague to see whether we can go back a bit in the light of arguments that have been made in this Chamber and elsewhere; indeed, I suspect that the Secretary of State will hear similar arguments in another place.
Lord Wallace of Saltaire
My Lords, the noble Lord is in the 15th minute of a speech on Report, which is a little long.
Lord Whitty
I accept that it is a little long, although I did warn the House, but it is actually only the 12th minute and this is an education Bill. I beg to move.
Baroness Walmsley
My Lords, in his Amendment 25 the noble Lord, Lord Whitty, replicates probing amendments that were tabled by at least three Members of this House in Committee and about which we had long discussions. As a result, the Government have come back with a very sensible amendment, accepting our feeling that we should insist that schools consult the most appropriate people. The words,
“such persons as they think appropriate”,
are particularly right in the light of what I have just heard from the noble Lord, Lord Whitty. He suggested that we should list the future pupils of a school as being appropriate to consult. How far in the future are we talking about? What about children in the womb or the parents of children who may at some stage go to that school but who may have moved 50 miles away by the time the child is born? That is nonsense. To list the various organisations and groups of people who should be consulted is the sort of thing that the noble Lord’s own Front Bench resisted on many occasions.
Lord Adonis
The nonsense that I see in the amendments before us is subsection (3) in government Amendment 30, which, as my noble friend rightly says, allows there to be consultation after the order, in respect of which the consultation should have taken place, has been made. The noble Lord, Lord Wallace, is very anxious that we all shut up and do not speak. I have been very frugal in my interventions on Report. I was anxious not to have to make such a speech, but I badly need to hear the justification of the noble Lord, Lord Hill, for government Amendment 30, particularly subsection (3). How does he justify a requirement for consultation to be permissible after the event to which the consultation refers? We need to hear that before we know whether this needs a longer debate in which further views will be expressed. Perhaps the noble Baroness will give her view on whether she thinks it is adequate for consultation to take place after the event to which it applies.
Baroness Walmsley
My Lords, I will come to my Amendment 31 in just a moment. I strongly suspect that the Minister’s answer to the noble Lord, Lord Adonis, is that the academy order is permissive. It does not force the school to become an academy; it is permission for it to do so. The school becomes an academy only when it converts. I suspect that will be the answer, but my noble friend will speak for himself. I agree with the noble Lord, Lord Whitty, that it is desirable that the school consults all the right people before it even applies. I very much suspect that all those groups who feel themselves to be appropriate consultees—
Baroness Thornton
Does the noble Baroness think that there should be a consultation before a school becomes an academy or not?
Baroness Walmsley
Indeed I do, which is why I have tabled my little tweaking amendment in the hope of persuading my noble friend that a school should consult before it applies to become an academy. Once it knows the shape of the proposed school, the terms of the academy funding agreement, and—particularly in the light of what my noble friend Lady Sharp said about schools’ expectations of that extra money being somewhat inflated—how much money it will get, it is highly desirable that a school should then go back to appropriate consultees and say, “These are the terms under which we will become an academy if we decide to go ahead. This is the extra amount of money that we will get and this is what we have to do with it. Are you still sure that this is the right way to go about it?”. That is why I have put my little tweak into my noble friend’s very welcome amendment about consultation. It is desirable, but if he suggests that it is another thing on which we should not prescribe, I would be happy to accept that.
For the record, however, I urge schools that are thinking of applying to consult widely. I am confident that any group of people who feel that they are an appropriate group under the terms of this amendment but have not been consulted will certainly kick up an awful fuss. I ask the Minister to consider in particular that the pupils of the school themselves and the local authority would, in normal circumstances, fall into the category of,
“such persons as they think appropriate”.
That would give me considerable comfort in supporting Amendment 30 without my Amendment 31.
Baroness Royall of Blaisdon
My Lords, I rise very briefly to speak to Amendments 26 and 29. I agree with many of the points that were made by my noble friend Lord Whitty, especially in relation to September and the timing of the Bill.
We had a full discussion on consultation in Committee, and I recognise that the Minister was listening to the concern expressed about the serious hole in the Bill to do with the lack of consultation. As a result, he has tabled Amendment 30. This is an improvement but I believe that it is simply not enough. First, the consultation required is far too narrow. The amendment states that it is up to the governing body whom to consult. A governing body that is determined to become an academy could decide to undertake an absolutely minimal consultation, ignoring many parts of the school community and the wider community that should, and must, take a view. I have no doubt that it will consult parents and teachers, but it might not, in the interests of speed, consult the local authority or the local community.
Secondly, the amendment appears to suggest that the consultation could take place after an academy order has been made. That is far too late. Consultations must take place before an order is made. I agree with some of the points made by the noble Baroness. I listened carefully to the debate in Committee and I was much taken by the view expressed by the noble and learned Lord, Lord Mackay of Clashfern, that the consultation should be the responsibility of the Secretary of State. Our Amendment 26 would give the Secretary of State ultimate responsibility. It is also crafted in such a way that it answers the concerns of noble Lords, including my noble friend Lord Adonis, who expressed concerns about litigation.
Amendment 29 stipulates some of the bodies that we strongly believe should be consulted, and top of our list is the local authority. I recognise, of course, that current legislation does not address these issues. However, as I mentioned earlier, there is a vast difference between 200 academies and 2,000 academies and the potential impact on local school communities and the wider community. Consultation, especially consultation with local authorities, is a matter of due process. Local authorities are responsible for ensuring that a range of duties are complied with, and they are best placed to have a strategic view of education as a whole. They are also best placed to ensure that the system can cope effectively with demographic changes. All these things need to be considered in a consultation. In addition, I believe that education cannot be delivered in isolation from the wider range of local public services used by children and young people, many of which are currently commissioned by councils. It is right and proper that local councils should be consulted.
In my view, consultation is a key component of the success of any academy and is key to ensuring a balanced school community. I recognise that many noble Lords would not wish to specify in the Bill who should be consulted. I therefore urge them to support Amendment 26, which merely ensures that the Secretary of State can ensure that the appropriate consultation takes place.
Lord Phillips of Sudbury
My Lords, it is very encouraging to see my noble friend the Minister bring forward his Amendment 30, but I join others in hoping that he may bring forward an amended version of it at the final stage of the Bill. None of these amendments, except Amendment 26—that may be inadvertent—takes account of new academies: the so-called free academy schools. All these amendments speak of the conversion of existing schools into academies.
Baroness Morgan of Drefelin
As I understand it, throughout the passage of the Bill, there has been no such thing as a free school; free schools are academies. I am sure that will help the noble Lord.
Lord Phillips of Sudbury
I am grateful for the intervention but I am not sure that it does. I was merely repeating the parlance used by the Government when they talk of academy schools that are not conversions as free schools. I am merely making the point that every one of these amendments is drafted on the basis of an existing maintained school converting to an academy: except Amendment 26, which would cover new free academies, as they are called, as well as existing secondary schools. It is blazingly obvious that our consultation provisions must apply to these new academies. In fact, the need for consultation where a brand new academy springs up in an area is even more acute than when an existing school converts into an academy. I hope that the Minister will say in response to this mini debate that he will bring forward an amendment at Third Reading that includes the new academies.
Lord Adonis
My Lords, my understanding of the rules of procedure is that if I do not speak now, I cannot speak after the Minister. Is that correct?
Lord Adonis
In that case, I need to speak now. I wish to put to him the specific points raised by a number of noble Lords—including, implicitly, the noble Baroness, Lady Walmsley, in her Amendment 31—about subsection (3) of his Amendment 30. Why does he think that it is satisfactory for consultation to take place after an academy order has been made? The noble Baroness said that the order may be permissive. That may be true, but it would have to have been applied for in the first instance, and only the governing body can apply for it. My reading of subsection (3) of the noble Lord’s amendment is therefore that it will be possible for a governing body to apply for an academy order without any consultation, and then to go through a second procedure as to whether it wishes to activate the powers in the order. I am anxious to know what circumstances the Minister could conceive of in which that would be a reasonable course of action. Surely the reasonable course of action is for the consultation to take place at the point at which the school applies for the powers. I should be grateful if the noble Lord could explain to us why he thinks it would be reasonable for the powers to be applied for without any consultation, and then for the consultation to take place later.
In respect of my noble friend Lady Royall’s Amendment 26, I should point out that under the Education and Inspections Act 2006, for which of course the previous Government were responsible, schools may change from community to foundation status. That is a significant change of status that enables the school to become the direct employer of its staff, the owner of its land and buildings and its own admissions authority and to make significant changes to its governing body. It can undertake that process by a decision of its governing body without the Secretary of State playing any role at all.
In terms of consistency, I see no case for Amendment 26. Crucially, it depends on the validity and confidence of the local community in the consultation on the decision that a governing body takes in the first instance when applying for academy status. I look forward to the Minister’s response. However, it would look peculiar to the local community if the whole process of seeking to become an academy happens without any consultation, and if a consultation takes place only at the very last stage when it will be clear to all concerned that the school intends to go down that course.
Lord Hill of Oareford
My Lords, when we discussed consultation in Committee, I said that I would think further. In doing so, I have kept very much in mind the distinction drawn by the noble Lord, Lord Adonis, in that debate between what he called the spirit of consultation and an overly prescriptive legislative approach. That is an important distinction that will inform my response to the other amendments in the group.
Before responding to those amendments, I wish to speak to Amendment 30, explain the background to it and respond to the points that have been made. Many noble Lords expressed the desire in Committee to see something in the Bill on the expectation to consult. That point was put to me by my noble friend Lady Williams and other noble friends, and by Members on the Benches opposite. I reflected on that and, while the general direction of our policy is rightly to be less prescriptive, I recognised the need to reassure the House further and came back with my amendment.
My amendment aims to introduce a statutory requirement for a maintained school to consult on its proposal to convert to academy status. The school's governing body must consult such persons as it thinks appropriate. The consultation, as has been pointed out in the amendment, may take place before or after an application for an academy order has been made in respect of the school, or after it has been granted. That will allow each school to determine when it has sufficient information on which to consult, and at what point during the application process it wishes to do so. It is our view that schools are in the best position to determine when and how best consultation should take place. They might prefer to approach parents or others at the point at which they have firm proposals. The requirement in the amendment is therefore that the consultation must be held before the funding agreement is signed, since that is the point at which the school would be legally committed to the conversion process.
My noble friend Lady Walmsley made a point about academy orders. As the noble Lord, Lord Adonis, knows probably better than I do, they are a step along the way but are not irreversible. It is proper for consultation to take place based on the facts, the evidence and the specific proposal, right up to the point at which the funding agreement is signed—when, as noble Lords know, the process is irreversible.
Many types of schools will have different views on whom and how to consult, and we prefer to trust them to determine how to do this rather than provide an inflexible checklist. I think that that point is broadly accepted, although not by the noble Lord, Lord Whitty. I will pick him up on one point. He said that these deals could be stitched up in smoke-filled rooms. Because of legislation passed by his Government, the rooms could not be smoke-filled. We are not in favour of the more inflexible approach. We must trust professionals to make decisions of this sort. In line with the commitment that we are giving, we are amending our advice to converting schools on the department's website to include guidance on good consultation practice. We will discuss with an applying school as part of the conversion process what arrangements it has made for consultation.
I turn to Amendment 28. The Secretary of State will want to review each application for an academy order on its merits. As we discussed earlier, there needs to be flexibility in those considerations, as there always has been with academies policy. Our guidance for academy converters that are not yet rated outstanding will be published on our website. It will include details of the information to be included in an application.
We are not persuaded of the need for the Secretary of State to consult on academy conversions, as Amendment 29 proposes. It should be the school's decision to become an academy except in those cases where the school is eligible for intervention. Therefore, we do not believe that it is necessary for both the Secretary of State and the school to consult on the matter.
I do not expect that this will satisfy everyone. I have sought with my amendment to capture what I felt was the mood of the House and the desire for more reassurance, given the importance that the Government attach to consultation. Making it a statutory requirement in the Bill provides the greater degree of reassurance that noble Lords asked for. I therefore commend Amendment 30 and ask noble Lords not to press their amendments.
Lord Mackay of Clashfern
My Lords, am I right in thinking that an order does not convert a school into an academy but enables it to be converted into an academy, and that the conversion takes place later when the agreement is consummated? Am I right also that Amendment 30 requires that the consultation takes place before the school is converted into an academy, which can be after the order is made because the school has not yet converted into an academy?
Lord Whitty
As a matter of clarification, does the noble Lord not accept the amendment to his amendment tabled by the noble Baroness, Lady Walmsley?
Lord Phillips of Sudbury
Perhaps I may ask the Minister for further clarification. Does he accept that his Amendment 30 does not cover new academy schools and therefore needs to be extended?
Lord Hill of Oareford
The amendment arose out of our debate about concerns relating to the potentially large number of converting schools. With the amendment that I have tabled in response to the point made by my noble friend, I hope that we have met the concerns that were raised about the impact of free schools. A free school, which is going to have to demonstrate parental support, will, by definition, have had to carry out a large amount of consultation.
Lord Whitty
My Lords, I thank noble Lords for this interesting debate. The Minister’s position appears to be that his Amendment 30 stands. He has not told us whether he is accepting the noble Baroness’s Amendment 31, which would make his amendment slightly more acceptable with regard to the governing body’s responsibilities. I am being told that he has quite clearly rejected it.
Baroness Walmsley
My understanding, as the person who spoke to Amendment 31, is that my noble friend has said that he does not wish to accept it. My view is that it is desirable but not essential and I shall not be moving it.
Lord Whitty
That clarifies that matter, and it underlines my position in one sense. I do not believe that the Minister has gone far enough to persuade us not to pursue this matter, in that his amendment does not go far enough. It allows for consultation to take place only right at the end of the process, whatever is on his website in terms of guidance, which is no doubt desirable but not statutory or regulatorily required. It does not cover the Secretary of State’s responsibilities and nor, as the noble Lord, Lord Phillips, said, does it explicitly cover the situation relating to free schools. Therefore, it is deficient, and I ask the Minister to consider coming forward at Third Reading with a more comprehensive amendment on consultation. The rules of procedure do not allow him to answer that but it seems to me that I ought to allow him the opportunity so to do.
I shall not press my Amendment 25 on the grounds that to some extent I accept that it is too prescriptive. I think that my Amendment 28, which would require discussion with the local authority, could be taken care of by the Minister coming back with a more comprehensive amendment. My noble friend Lady Royall will no doubt decide whether to move Amendment 26, which is not as prescriptive but does deal with the central issues of timing and widespread consultation.
At this time of night I am not going to win a vote, although I consider that I have won the argument. I think that the Minister needs at least the flexibility to consider everything that has been said and to come back with a better amendment at Third Reading—one which does not include lists of people but which allows some flexibility in the process and clearly imposes on both the Secretary of State and the governing body a degree of consultation. I hope that he will hear what I say in that regard. In the mean time, I beg leave to withdraw the amendment.
“Consultation before Academy order
Before entering into Academy arrangements with any person the Secretary of State must satisfy himself that relevant interested parties have been consulted by that person.”
Baroness Royall of Blaisdon
My Lords, I am very grateful to the Minister for his clarification and to the noble and learned Lord, Lord Mackay of Clashfern, for further clarifying the issue.
I believe that the government amendment is too weak in that it does not deal with the timing properly. That is the most important thing. While I understand from what the noble and learned Lord says that it is not the end of the process, the consultation comes too late. It needs to take place at the beginning or just as the process has begun. That is a fatal flaw in the government amendment. I also believe that the consultation required is too narrow.
My noble friend Lord Adonis referred to foundation schools. I accept that in the past they have not had to consult when they changed their status. However, I think that there is a quantitative difference in the number of academies and the free schools that will become academies. We could be talking about thousands of schools. I think that consultation—
Baroness Anelay of St Johns
My Lords, procedure on Report does not permit such matters. Only questions for elucidation are permitted after the Minister has sat down.
Baroness Royall of Blaisdon
I am grateful to the noble Baroness. Essentially the government amendment is too weak. I beg to move Amendment 26.
Lord Hill of Oareford
“Consultation on conversion
(1) Before a maintained school in England is converted into an Academy, the school’s governing body must consult such persons as they think appropriate.
(2) The consultation must be on the question of whether the school should be converted into an Academy.
(3) The consultation may take place before or after an Academy order, or an application for an Academy order, has been made in respect of the school.”
Lord Hill of Oareford
Lord Hill of Oareford
My Lords, Amendments 34, 35, 36, 37 and 54 are clarificatory amendments. Amendments 34, 35, 36 and 37 are intended to reflect the fact that the powers in Clauses 6 and 7 are intended to be used only when the school is very close to finalising funding arrangements with the Secretary of State, not merely because an academy order has been made.
Amendment 54 is necessary because the phrase “converted into”, which is currently found only in Clause 4(4), is now more widely used in the Bill. As noble Lords have previously commented, academy conversion is a two-stage process involving the making of an academy order and the agreeing of funding arrangements. These amendments ensure that should negotiations between the school and the Secretary of State not result in a final funding agreement being signed, there can be no question of the property transfer or financial balance powers being used. There would, of course, be no intention to use these powers other than to enable a school to make the necessary transition with all of its possessions, but we felt that this would make the position clearer.
Amendments 42, 43 and 44 provide further strengthening of the regime already contained in the Bill to provide protection for investments of public money into land held by schools and local authorities. The Bill’s provisions currently protect publicly funded maintained school land after a school becomes an academy by allowing the Secretary of State to make directions on the transfer of that land, should the academy close or vacate the site. However, as it stands, those protections apply only where interest in the land was transferred to the academy upon its conversion. If the foundation owning the land did not transfer it or any interest in it to the academy in the first place, then the public interest in the land would not currently protect it if the school were to close thereafter. I am grateful to the Catholic Education Service for bringing this issue to our attention.
We have made clear the importance of protecting investments of public money. This amendment therefore inserts a new provision to ensure that the powers to direct the transfer of land that was previously used for an academy also apply in circumstances where the land is retained by the existing foundation and used in any way for the purposes of the academy. It simply seeks to ensure that all possible and likely scenarios around land are covered equally and in a way that protects public investment in them. I beg to move.
Baroness Morgan of Drefelin
My Lords, I am grateful to the noble Lord for moving what I am sure are technical amendments. It would be helpful if he could explain whether these amendments apply equally to independent schools and to schools transferring from the maintained sector to become academies. If land is donated to a free school, a new academy, how will these provisions apply in those circumstances?
Lord Hill of Oareford
My Lords, I believe that they apply across the board. Should I need to be precise in some of those details, it might be best if I follow that up subsequently. I believe that because this will be in the general provisions of the Bill, it will apply equally to all academies.
Lord Hill of Oareford
(c) the school is to be converted into an Academy.”
Lord Hill of Oareford
(b) the school is to be converted into an Academy.”
Lord Greaves
“Local authority duties
(1) The Secretary of State may by order arrange for a local authority to carry out any of the activities in subsection (2).
(2) The activities are—
(a) the oversight and monitoring of Academies in its area;(b) intervention and challenge when an Academy is under-performing;(c) strategies and plans of action for the conversion of schools in its area into Academies;(d) facilitating the integration of the work of Academies with that of maintained schools in the area;(e) anything else that the Secretary of State may do in relation to Academies.(3) An order made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”
Lord Greaves
My Lords, Amendment 38 stands on its own. A noble Lord seems to think that there is something funny in that, although I do not know what it is. I am trying to get a bit of enthusiasm and to get going so that it does not take so much time. With this amendment I return to the future role of local authorities, which I raised in Committee, particularly in relation to academies. It also raises the wider question of the future role of local authorities in relation to schools and education generally, which the whole question of academy conversions raises, particularly if they take place on quite a large scale in some areas.
I do not raise this issue particularly from the point of view of schools in the Lancashire authority, because we do not seem to have many schools applying for or expressing an interest in academies. Where I live, there have been just half a dozen in the eastern part of the county. In Pendle only one school was listed and it spent a lot of time last week telling everyone who inquired that it had appeared on the list by mistake and that it should not have been there at all. How many more there are like that, I do not know.
In some areas—it appears to be particularly so in parts of southern England and the south-east—there are rather a lot, so the future role of the local authority in relation to schools and pupils in those areas will become more pressing. In Committee I tabled two amendments on this matter. The Minister seemed to show some interest in the questions being raised and accepted that there are legitimate questions to be asked and answered. To paraphrase, he said that the Government believed that there was an important strategic role for local authorities in future in relation to schools, but that the Government had not really worked out exactly what that was yet and needed to think about it further. I think that that is a reasonable summary of what he said.
I have put this amendment down for further consideration in order to ask the Government their intentions in this matter, how quickly they might think about it and what consultation they might take in the mean time. I have rewritten it to be more general. I have suggested that future activities, even if all the schools in an area converted to academies, might include the,
“oversight and monitoring of Academies”,
which should be done locally rather than through a national quango or bureaucracy, and that there should be “intervention and challenge” when necessary. The issue which I raised in Committee about the,
“strategies and plans of action for the conversion of schools”,
to academies seems to be much more suited to local involvement and planning than at a national level where there is not likely to be much co-ordinated planning in each local area. Another activity listed in the amendment is,
“facilitating the integration of the work of Academies with that of maintained schools”.
The word “partnership” might have been better than “integration”, but the point is fairly fundamental; and there are probably other things that the local authority should be involved in in future in a strategic way—and, indeed, in a less strategic way—which I have not noted here.
This is a major issue. What I want to ask the Government is whether they will give a commitment that an important part of the education Bill that is expected in the autumn will tackle this vital area. Local authorities are going to be left in limbo if a lot of their schools convert quickly or do so over the next two or three years. They need to know where they stand and how to plan for the future, and everyone needs to know exactly what their role is going to be. Is that something that can be tackled in the promised education Bill, and if it is, will the Government carry out a serious consultation with local authorities over the summer to establish what local authorities think their role should be? That would create a genuine dialogue between the Government and local authorities about their future role in relation to schools.
This needs to take place with the Local Government Association and with educational bodies, and it also needs to take place with individual local authorities that have responsibility for schools. I know that the Government have written to local authorities just to ask them what their future role might be, but a proper consultation needs to take place. The Government need to set out the parameters of what could happen in the future, with alternatives and proposals, and ask local authorities what they think they ought to be contributing. If there is an important strategic role for local authorities, which the Government say there is, in a future in which an increasing number of schools in different areas are going to convert to academies, we need to know what that role is both while the process of conversion takes place and after a substantial number of schools have become academies. Either there is a role or there is not. The Government say there is, and we have several months before the education Bill arrives in the autumn for a thorough and serious debate about this extremely important matter. That is the purpose of this amendment. I look forward to a positive response from the Minister and I beg to move.
Lord Hunt of Kings Heath
My Lords, it is a remarkable testimony to the drawing powers of the noble Lord, Lord Greaves, on local government that at 11.08 in the evening, so many noble Lords are present to hear him speak. I should say that when he addressed these matters in Committee, it was also at a late hour. He has raised issues that are of great substance, and I hope that he might be tempted to bring an amendment back at Third Reading when we could have a proper debate about the role of local government in relation to education in prime time.
I believe that local authorities could have a positive role in the future. I read with interest the briefing produced by the Local Government Association, and they could have a useful and constructive role to play, post this Bill, in relation to academies. We had a good debate on SEN where I could see the positive role for local government. I come back to the Minister’s earlier comment that there is a clear tension in all these debates between wanting to let schools have much greater freedom, which many of us sign up to, and the risk that that involves. The Minister said that if you trust people, there will be times when things go wrong, and I think that that is right. The problem the Government face is that unless they have a local mechanism in place for dealing with these issues, they will come right back to Ministers. However much they set up other agencies or say, “It is nothing to do with us, it is a matter for individual schools”, I can tell him that in the end they will come back to Ministers. In that context, local authorities could play a constructive role and I hope that the noble Lord, Lord Greaves, might allow us to have a wider debate on this next week.
The Earl of Listowel
My Lords, I agree with the thrust of what the noble Lord, Lord Greaves, has said. He referred back—as did the noble Lord, Lord Hunt of Kings Heath—to our debate on the necessary expensive services to children with special educational needs and the need for a strategic commissioning of such services. There could be an important role for local authorities in that area in future. Like the noble Lord, I would encourage the Minister to set up some kind of forum with the local authority so that there is an ongoing communication with it. Each local authority will have a councillor responsible for the welfare of children within its area; why could there not be informal meetings in which new academies are introduced to such people? This would enable the doors of communication to be kept open?
As my noble friend Lady Howarth made clear, if we want children to succeed at school, we need to make sure that their welfare is catered for. It is important that social services work in partnership with schools. I am sorry to repeat it one more time, but head teachers keep on telling me about the value of social workers when they are connected with a school; or, if they do not have a social worker, how much they would like one attached to their school. It is important to keep these matters in mind and I thank the noble Lord, Lord Greaves, for making this debate possible.
Lord Wallace of Saltaire
My Lords, the debate in Committee underlined the importance which many noble Lords attach to the role of local authorities. There are some very important questions here and we do not pretend to have all of the answers. Both parties within the coalition are committed to the principle of localism, with decisions and accountability returned from London to local communities. We are clear that we no longer want to hear the Secretary of State for Education—as happened under the previous Secretary of State—announcing on the “Today” programme that he had just dismissed a head teacher in Carlisle. However, it would be only honest to admit that neither party in the coalition is yet clear what localism means in detail, in this sector and others, and what the balance between the role of local authorities and of more local communities, including parents and others, should be.
In his letter to council lead members sent on 26 May, my right honourable friend the Secretary of State for education made it clear that the Government see strong local authorities as central to their plans to improve education. This Thursday, the Secretary of State will be speaking on this theme to the Local Government Association conference. He will confirm that we want to see local authorities acting as powerful champions of excellence, both in education and in wider children’s services, and that we want to see local government playing a strong strategic role, working with schools to drive up standards, supporting schools in working together to share expertise, and in promoting the spread of innovation for the benefit of all.
We want to see a smooth transition to the new school system and we are pursuing a genuine dialogue with local government and other partners to that end. We will therefore pursue further dialogue with representatives of local government about these and related issues over the coming weeks and months. It may be, as my noble friend Lord Greaves suggested, that the local authority develops more of a commissioning role along the lines envisioned by the party opposite in its 2005 White Paper. It may also be that some of the other ideas that he alludes to in his amendment should be explored further as part of the future shape of provision and the relationship between local authorities and schools. I assure my noble friend that the Secretary of State is committed to this dialogue; he will be pursuing it further on Thursday and will make a number of proposals as to how it should be taken further in the next weeks and months. I invite my noble friend Lord Greaves, with his considerable expertise in this field, and other noble Lords who have expressed interest, to help shape our thinking in this area so that we can, in time, come forward with the best possible proposals. On that basis, I urge my noble friend to withdraw the amendment.
Lord Greaves
My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for his comments. He suggested that we might have a wider debate next week at Third Reading and that I should put down further amendments. If he can explain to me how to get further amendments past the Clerks, I may pursue that suggestion. I would take advice from him as a former Minister.
Lord Hunt of Kings Heath
My Lords, perhaps I can help the noble Lord. It is quite clear that if he does not press his amendment tonight, the matter will not have been settled. The fact that there has not been an occasion other than at a very late hour should, I hope, be ample justification for him to produce another amendment.
Lord Greaves
I shall perhaps go into the Public Bill Office waving my copy of Hansard and quoting the noble Lord in evidence. How much good it will do, I will perhaps find out.
I was grateful to my noble friend the Minister for his response to my comments. The phrase “it may be” occurred quite a lot of times, which does not seem to be a very firm commitment, but I shall perhaps discuss with him outside this Chamber what it means in this context. I hope that I can get a firm assurance that the Government will look seriously at these matters. The fundamental question as far as this Bill is concerned is: what is the relationship between a local authority and academy schools in its area? That is why the amendment is tabled as it is. There is the wider issue of the role of what we used to call the local education authorities.
My noble friend the Minister almost got into a philosophical discussion of localism and then drew back—I would take part in such a discussion any time. However, he did say that he wanted local authorities to have a strong, strategic role in education. That is the nub of the matter. The question that he did not answer is whether we can expect this autumn’s education Bill to tackle the important question of the role of local authorities. That, again, is a question that I will want to pursue with him outside this Chamber before deciding whether to attempt to bring it back. Meanwhile, I beg leave to withdraw the amendment.
Lord Hodgson of Astley Abbotts
My Lords, this is a technical but important amendment that is causing some interest and concern in the charitable sector because of the implications for the authority of the Charity Commission. We had a very interesting debate on this matter in Committee on 28 June, when my noble friend the Minister was kind enough to suggest that I should withdraw the amendment so that some conversations could take place behind the green baize door. I am pleased to be able to say that we have had those conversations. Some interesting points were made by his officials, to which I shall respond in a minute. No definite conclusions were reached, however, so I have re-tabled Amendment 40 in the hope that the Minister will be able tonight to accept its purpose.
Just to set the issue in context, I remind the House that my original argument was as follows. The Charities Act 2006 created a delicate balance, reconciling the many and diverse views about charitable activities. It did so by removing the presumption under the 1601 Act that the advance of religion, relief of poverty and advance of education were automatically charitable. It was agreed that this was no longer appropriate. Instead of this, we were to have a single public benefit test, to be applied to all charities at inception and thereafter. It put the creation, administration and enforcement of the public benefit test in the hands of a single independent regulator, insulated from any political pressure: the Charity Commission. Thus, a level playing field was established across all charities.
Nowhere was this more important than in the field of education, because education has fee-paying schools and there are strong views about whether they can or should be able to have charitable status. I argued that the Bill as presently drafted upsets that balance, undermines the independence of the Charity Commission and, most importantly, creates a dangerous precedent of government and ministerial interference in the charitable sector. That was the argument.
The arguments of the Minister’s officials can be summarised as follows. First, the wording of the type used in Clause 8(1) has been used before and therefore changing it is not only unnecessary but creates a dangerous precedent. As a matter of principle, I find that an unsatisfactory response. Carried to its extreme, it is an argument for never changing anything and for complete bureaucratic inertia. If the drafting of a statute is defective, we should put it right and not argue that it is too difficult to change it subsequently. But I have a number of substantive arguments as opposed to that one of principle and issues about the way the Minister’s officials have sought to reinforce their position.
The first is that any precedents that are drafted before 2006 are irrelevant because they predate the ending of presumption: they assume presumption and therefore are irrelevant. Only those statutes that have come into effect post-2006 are relevant. There is only one such that the Bill team was able to produce and that was in the Apprenticeships, Skills, Children and Learning Act 2009, so I went searching. In Schedule 8 (33M), I found:
““A sixth form college corporation is a charity within the meaning of the Charities Act 1993”.
That is quite different wording from what we have here. The Bill states:
“A qualifying Academy proprietor is a charity”,
not,
“a charity within the meaning of the Charities Act 1993”.
I am not enough of a lawyer to be able to weigh the significance of the additional words, but it indicates that sixth form colleges are much more closely tied to the remit of the Charity Commission and therefore reduced the risk of undermining the authority of that commission. Certainly, nothing in the 2009 Act envisaged the creation of a whole new class of exempt charities with their own regulator as Clause 8 does in subsection(4).
Further, the nature of the arrangements in the Apprenticeships, Skills, Children and Learning Act are quite different from those envisaged in this Academies Bill. Inter alia, the former Act did not envisage the degree of independence for sixth form colleges as for schools under this Academies Bill. If noble Lords look at the Model Funding Agreement which the Minister has been kind enough to circulate, in many cases they will see a degree of independence that means that the charitable status of the academy is much more important. The Minister himself in his letter of 1 July that he kindly circulated to us says that:
“These different processes are necessary because of the contractual nature of our relationship with the Academies”.
Therefore, the Bill team is wrong to try to argue that there are a series of precedents out there that make this amendment unnecessary.
The second argument that the Bill team brought forward was to quote from my speech in Committee on 28 June when I said I was sure that academies would be able to pass the public benefit test. Why, then, they argued should I be concerned about the wording? I absolutely agree that it is likely that the academies will pass the charitable test, but that is not the same as believing that they should not be able to fail. I can envisage circumstances in which academies could fail a public benefit test. Indeed, the many debates that we have had tonight and in Committee have raised pinch points where that could happen. I hope that it does not, but it could. That is why we need to be very clear about charitable status.
To conclude, my amendment is designed to bring absolute clarity to the charitable status of academies by preserving beyond peradventure the delicate balance achieved in the Charities Act 2006—no ifs, no buts, no maybes and, above all, no requirement to pay expensive lawyers for interpretation of clauses the meaning of which is not absolutely clear. Along the way, this amendment has two further side benefits: we buttress the independence and authority of the Charity Commission as the regulator of the sector and, last but not least, we avoid creating a precedent of governmental interference in a sector that is heartily to be avoided. I beg to move.
Lord Phillips of Sudbury
My Lords, I shall speak to Amendments 40A and 40B and build to some extent on what the noble Lord has just said. As a long in the tooth charity lawyer, I have come to believe that the law of charity is best regulated by the Charity Commission. It may not be a perfect regulatory animal but it is, by a measure that you cannot count, more experienced in regulating charities than any of the other principal regulators. It is worth adding that charity law is one of the most difficult branches of law, as it is both a combination of common law and statute law and calls for more judgment in its application than perhaps any other branch of law. It is not textbook law.
I have heard what my noble friend the Minister has said on past occasions and I am content, despite misgivings, to go along with Clause 8, but only on condition that, if the principal regulator proves inadequate to the difficult task of regulating not only the large number of academies to come but the 200-plus academies that already exist, the Charity Commission should then be able to intervene and exercise powers.
For noble Lords who are not aware of it, I should say that the Attorney-General has jurisdiction with regard to all charities. The Minister might say that that should be enough, but the Attorney-General will not intervene other than in quite exceptional circumstances and, frankly, he is not supposed to be an alias principal regulator. The problem is that the powers in Sections 8 and 18 of the Charities Act 1993 were given to the Charity Commission to ensure that charities are charitable—and there is no more precious name or reputation in this country, I suggest, than that of charity—and can be exercised only by the Charity Commission. They cannot be exercised by a principal regulator unless that regulator asks the Charity Commission to exercise those powers on its behalf.
My Amendment 40B says that when the Charity Commission has concerns over the regulation of a principal regulator and what it is doing, or more likely not doing—in this case it will deal with the Young People's Learning Agency, because my noble friend has indicated that that is to be the regulator of academy schools—the commission will consult the principal regulator, the YPLA. If, having consulted the YPLA, it remains unhappy at what the YPLA proposes to do or not to do, having given notice to the YPLA it can institute an inquiry under Section 8 of the 1993 Act that will lead to the much wider powers that it will have under Section 18 of that Act. This is a power, a provision, that I would not expect to be exercised at all, but it is well worth having in the Bill because it may prove to be just the sort of spur that may be needed—I hope it will not—in order for the YPLA to do the job properly. That longstop—the prospect of being exposed to public ridicule and contempt by the Charity Commission having to intervene under the provisions of this subsection—would ensure, as far as anything could, that the YPLA did the job properly.
Before finishing, I would like to say a word about the YPLA. It has been in existence for just three months. Noble Lords may wonder, as I do, whether such a new organisation can possibly be in a position almost immediately—we are talking about the autumn—to undertake this huge and difficult regulatory role. People capable of exercising these powers in a knowledgeable and practical way are few and far between, and it will not be easy to put in place the team necessary to do this job properly. It must be done properly because these academy schools are hugely important in public interest terms. I am anxious that it will not be possible for them to assemble the necessary expertise to do that job, which makes my amendment all the more important.
I am also concerned, to be honest, about the potential conflict of interest that the YPLA will have. Its principal responsibilities, as made clear by the former Minister, Ed Balls, are, first, to support local authorities in commissioning suitable education and training for 16 to 19 year-olds; secondly, to fund academies; and, thirdly, to provide financial support to young learners— none of which is anything to do with the difficult regulatory function that is to be cast upon it under the Bill. I am sorry to have had to explain all that at length, but it is not easy to get across the background to and the need for this amendment.
Finally, and much more simply, my Amendment 40A adds to Clause 8 the charitable incorporated organisation alongside companies limited by guarantee as the alternative vehicle for an academy school. This charitable incorporated organisation was brought into existence by the Charities Act 2006. It is a specially tailor-made corporate animal for charities and is therefore infinitely simpler than the company limited by guarantee, which is subject to the vast forest of company law. I have no doubt that when the regulations come into effect, which will in effect give birth to these charitable incorporated organisations, all the academy schools will want to convert into that new charitable corporate vehicle. It would be remiss if we were not to include that now alongside companies limited by guarantee. I hope that both these amendments will appeal to your Lordships and indeed to my noble friend the Minister.
Baroness Morgan of Drefelin
My Lords, I have listened to the debate on Report with even more concern than I did in Committee. I was hoping that, following meetings between noble Lords and the Minister, there would be more on offer to meet the concerns raised by the noble Lords opposite.
When thinking about this group of amendments, I had similar concerns to those of the noble Lords, Lord Hodgson and Lord Phillips. I was particularly concerned about the role of the YPLA as a regulator when there are conflicts of interest and about the YPLA’s capacity to deal with this. Will the Minister tell us how many staff with charity law experience the association has in place who are ready for this retrospective legislation that will put it in charge of regulating the academies that are currently charities, if that is what is going to happen? I am very concerned about Clause 8.
This reminds me of a storyline from “Yes Minister”. When a new Government come in, officials dust down an old policy that they were not able to convince the previous Government to pursue and suddenly it finds its way into legislation. That is what appears to have happened here. When we were in government, this proposal was put to us. We listened to the concerns voiced by many and to arguments similar to those put by the noble Lord, Lord Hodgson, and we did not pursue this approach.
In Committee, the noble Lord, Lord Phillips, described the clause as “a dog’s dinner” and made clear his view that the regulator should be mentioned in the Bill. The noble Lord, Lord Hodgson, made the important point that the Bill would damage the “delicate balance” between,
“the many strongly held views about the charitable sector”.—[Official Report, 28/6/10; col. 1632.]
He said that this would particularly be the case in the area of education, which has been highly controversial.
The Government should tread carefully in this area. I offer the Minister some advice: it would be sensible to listen to the advice that he is being given at this Report stage and to think further about how the issue can be managed in the Bill. I do not think that it would be a good thing to go forward with this clause, as it would unsettle the settlement achieved in the Charities Act 2006, which was a well deliberated piece of legislation about a hugely controversial area. I hope that the Minister will think further about this.
Lord Hill of Oareford
My Lords, as usual this has been an interesting debate. My noble friend Lord Hodgson has set out important points of principle, which, as he said, we have had the chance to debate outside the Chamber—I am grateful to him for taking the time to do so.
I start by setting out the purpose of Clause 8(1), which is to put beyond doubt that academies are charities. Because it is proposed that academies will be exempt charities, they will not in the future be registered with the Charity Commission. It follows from that that they will not receive a charity registration number from the Charity Commission or the Charity Commission’s confirmation of charitable status that comes with being registered. Therefore, we think it important statutorily to confirm academies’ status as charities in this clause.
My noble friend Lord Hodgson has spoken powerfully and from a position of principle. I know how much work he and other noble Lords did on the Charities Act 2006 and, when I heard him arguing his case in Committee and when we met, I found what he said very much worth listening to. He touched previously on his concern that deeming academy trusts to be charities would set a precedent and he set out the response that he was given about that. I reiterate our view that there is a precedent. Our proposal to deem academy proprietors as charities will replicate the current legal position as it applies for a variety of other educational bodies whose status as charities is declared by statute. A range of educational bodies are deemed charities and are made exempt charities. Further education colleges and higher education colleges are deemed charities and are made exempt charities not regulated by the Charity Commission. The governing bodies of foundation and voluntary schools are deemed as charities; they are shortly to become exempt charities as well, following discussion and agreement between Ministers at the Cabinet Office and the department. It seems to me that it is not completely inappropriate for academies to be treated consistently with these other schools and educational bodies and for them to be deemed as charities under Clause 8(1) and made exempt under Clause 8(4).
My noble friend Lord Hodgson reiterated tonight the point that he made in Committee: he has no doubt that academies would be able to pass the public benefit test established by the Charities Act 2006. Given that, it would be appropriate to treat academies in the same way as these other educational institutions. The model articles of association for academy trusts provide that the objective of the academy trust is to advance education for the public benefit. It is only academy trusts which have exclusively charitable objectives that would be deemed charities. The provision of education to pupils without charge is in the public benefit. Therefore, their charitable status should be confirmed.
If Clause 8(4) is enacted, a principal regulator would need to be appointed to oversee academies’ compliance with charity law. The Minister for the Cabinet Office, as noble Lords know, has agreed in principle to appoint the Young People’s Learning Agency as principal regulator. I know that some reservations have been expressed about that. It will clearly need to recruit people to perform that role in just the same way as the Charity Commission would have to. It has made clear that it does not necessarily have the staff to perform this responsibility. As the government body with day-to-day responsibility for managing the performance of open academies, the YPLA could be an appropriate body to carry out this role, since it means that it would be managing academies as a whole. The YPLA and the Charity Commission would agree a memorandum of understanding about the principal regulator role to ensure that academy trusts remain fully compliant with charity law. On the matter of maintaining accountability and transparency, funding agreements or grant arrangements would place an obligation on academy trusts to publish their governing documents, reports, accounts and the names of their trustees.
Amendment 40A, spoken to by my noble friend Lord Phillips, would allow charitable incorporated organisations to enter into academy arrangements. If that is my noble friend’s intention, I am pleased to tell him that the Bill as drafted would allow that to take place. Clause 1(1) allows the Secretary of State to enter into academy arrangements “with any person”. I am advised that it is thus already possible for the Secretary of State to enter into academy arrangements with a charitable incorporated organisation, but it is not necessary for it to be deemed a charity or exempted to enter into such an arrangement. I know my noble friend’s expertise in this area and that he will want to reflect on this point. I will be happy to arrange to confirm that understanding with him.
Amendment 40B would give the Charity Commission the power to institute an inquiry if it considered that an academy trust was not complying with its charity law obligations. We would certainly accept and agree with my noble friend that the principal regulator should seek advice from the Charity Commission where necessary. We expect the YPLA to work closely with the Charity Commission, but are not currently convinced that the commission should be able to override the principal regulator. The Charity Commission has the power to conduct inquiries in relation to exempt charities under Section 8 of the Charities Act 1993, where the principal regulator requests this.
This next point may go some way to meeting my noble friend’s point about the backstop but, again, I am happy to discuss it with him. If the Secretary of State was satisfied that the YPLA was unreasonably refusing to invite the Charity Commission to carry out an inquiry in relation to an academy—I assume that is a conversation that he could have with the Charity Commission, or it with him—he has the power to direct the YPLA to make such a request to the Charity Commission, so that it could carry out that inquiry. I hope that provides a modicum of reassurance to my noble friend, but I am happy to discuss that further.
Overall, it is a clear principle of the academies programme that academy trusts should be charities. Clause 8 will make the process of establishing an academy easier by removing the need for each one to apply to the Charity Commission to be registered as a charity. It will simplify the regulation process. I hope that on some of these points I have provided reassurance that academies’ compliance with charity law, and public accountability and transparency, will be fully maintained.
Lord Hodgson of Astley Abbotts
If the YPLA is the exempt regulator, does my noble friend expect it to have a public benefit test which it will apply to the schools, and will that be the same public benefit test as the Charity Commission applies to other schools?
Lord Hill of Oareford
We think that a state-funded school which becomes an academy would be deemed to have passed the public benefit test. However, if I am wrong about that, I will write to my noble friend and put myself straight.
I know that my answer will not have provided satisfaction to my noble friend Lord Hodgson, and that I have only part met some of the concerns raised by my noble friend Lord Phillips. However, given the answers that I have provided, I hope that they will feel able at this hour not to press their amendments.
Lord Hodgson of Astley Abbotts
My Lords, I am grateful to the Minister for his lengthy research and work and for the answers that he has given me, though I have to say they are slightly uncompromising in tone. However, it is obviously far too late to explore this matter further tonight. I beg leave to withdraw the amendment.
Lord Phillips of Sudbury
Lord Phillips of Sudbury
I too will not pursue this matter tonight. I think that my noble friend the Minister is not right on either of the two legal points he puts forward, but we can discuss that tomorrow.
Lord Hill of Oareford
“( ) This paragraph also applies if—
(a) publicly funded land has been held for the purposes of a maintained school by the trustees of the school, (b) the land is held by the trustees for the purposes of an Academy, and (c) the first or the second condition set out below is satisfied.”
Lord Hill of Oareford
“Freedom of Information Act 2000 (c. 36)9A In Part 4 of Schedule 1 to the Freedom of Information Act 2000 (public authorities: maintained schools and other educational institutions) after paragraph 52 insert—
“52A (1) The proprietor of an Academy, in respect of information held for the purposes of the proprietor’s functions under Academy arrangements.
(2) In sub-paragraph (1)—
“Academy arrangements” has the meaning given by section 1 of the Academies Act 2010;
“proprietor” has the meaning given by section 579(1) of the Education Act 1996.””
Lord Hill of Oareford
My Lords, in Committee I said that I agreed with my noble friend Lord Lucas that academies should be included within the coverage of the Freedom of Information Act 2000. I said that I would consider this issue further and come back to it on Report. Having thought about it, I can see no reason why academy proprietors should not be subject to the Freedom of Information Act in the same way as all maintained schools are subject to that Act. Amendment 47 would simply insert a new clause into the Bill that would amend the Freedom of Information Act 2000 to add academy proprietors to the list of public bodies covered by that Act.
The new clause brings academy proprietors within the coverage of the Act in respect of information that they hold for the purposes of their functions under academy arrangements. This will cover functions relating to establishing and maintaining an academy and the carrying on of the academy once it has been established. If enacted, it is our intention to commence this duty in sufficient time to ensure that any schools which become academies in September will continue to be subject to the Act after they cease to be maintained schools. In relation to existing academies which have up until now not been subject to the Act, we intend to commence this duty for them early in the new year in order to give them time to prepare.
We believe that extending the Freedom of Information Act to academies is right in itself, but it also has another advantage linked to our broader discussions in Committee and today about consultation and transparency. I believe that having information about academies in the public domain will help dispel suspicion and make people appreciate the positive contribution that they are making to raising educational standards. I know that noble Lords on all sides of the Committee will welcome this amendment and I am very grateful to my noble friend Lord Lucas for flagging the issue up with his original amendment.
Amendment 55 is a technical amendment required to ensure that Amendment 47, the main amendment to the Freedom of Information Act, will technically extend throughout the United Kingdom, even though it will apply only in England. I beg to move.
Lord Hunt of Kings Heath
My Lords, I am sure that all noble Lords would thank the Minister for this. I wish to ask him a question. Yesterday we debated the small primary school that would have been able to become a foundation trust. Today, we have the announcement of the review of the UEA e-mail issue in relation to climate change scientific research, which in itself raises FOI issues. All of us who have been involved in public authorities know that establishing the apparatus and support mechanisms to deal with FOI requests can be considerable. I can envisage a school, perhaps not so much a primary but a secondary, dealing with admission issues and being subject to FOI requests, which is quite likely. My question for the Minister is: what support mechanism will be put in place to help schools deal with the FOI system, because they will need something.
Lord Hill of Oareford
My Lords, that is a very fair and sensible point. At the moment, maintained schools would be helped by the local authority. I take the noble Lord’s point. Academies which find themselves in that situation will need the kind of support that he is talking about. We will think about that within the department. I do not know whether the department is the right place to deal with this—it may well be. I take the noble Lord’s point; I agree with him and I will reflect on it. Perhaps I can let him know how we get on.
Lord Whitty
“In section 237 (orders: supplementary) after subsection (3) insert—
(3A) An order under section 233(2)(d) or 234(2)(b) may also make provision by reference to actions taken or to be taken pursuant to Academy arrangements.
(3B) An order under section 233(2)(d) or 234(2)(b) or (4)(b) shall be formulated so as to apply to support staff employed to work at Academies with the same effect as it applies to staff employed to work in maintained schools.”
In section 238(3) (guidance) after paragraph (b) insert—
“(c) the governing body and proprietor of an Academy”.In section 240(3)(a) (school support staff) at end insert “or is employed under a contract of employment providing for the person to work wholly or mainly at an Academy in England”.
In section 241 (general interpretation) after “Chapter—” insert—
““academy” means an Academy within the meaning of the Academies Act 2010,
“Academy arrangements” means Academy arrangements within the meaning of the Academies Act 2010.””
Lord Whitty
My Lords, it is a bit of a forlorn hope that I can capture the Chamber’s attention at this time of night for a group of people who have not been mentioned at any other point during today, although they were mentioned at an earlier stage by the noble Baroness, Lady Sharp. I am very much on the same wavelength as her.
Among the groups that my amendment on consultation would cover are the teaching staff in general and teaching support staff in particular. This has been an area of expansion of employment in schools—in old jobs such as school secretaries and wider management roles, and in new jobs such as classroom assistants, paraprofessionals and other specialists. Because they are a relatively recent phenomenon, the terms and conditions under which such staff are employed are variable and are not on the same basis as other groups of staff within schools and local authorities.
Local authorities of all political persuasions, the LGA and the unions got together over the past three years to establish the support staff negotiating body and establish a national framework for the terms and conditions of such staff. This has proved beneficial to the management of schools which previously had found difficulty in having to manage individuals under separate terms. In some cases, there were serious conflicts.
This is not just a trade union point; it is a point about how smoothly schools can be managed and how we can avoid conflict in those schools. The problem of when academies are created under the Bill is that without consultation and the normal processes, public servants will be transferred into what will, in effect, be the private sector in terms of the employers they have to deal with. There would be an element of stability in that process if academies were to remain in the support staff framework. It is true that existing academies do not have to be in that framework, although they can opt to be, but it would be helpful to the management of schools which will face all sorts of more complex matters of self-management, once they become academies, if they were to remain or be assumed to remain within that structure.
When the noble Baroness, Lady Sharp, raised this at an earlier stage, she was told by the Minister that it was not deemed appropriate since the market would determine the rates—that would be the situation with teachers and what was good for teachers must be good for all other staff. Actually, it is the opposite situation. Academies will compete for teaching staff who are specialists or good teachers or teachers in subjects where teachers are scarce and thereby improve their conditions above the norm. In the area of support staff, what is likely to happen is that they will undermine what has previously been the rate in the continuing maintained schools in the local authority area, and will provide pay and conditions that are worse than they were prior to conversion to academy status. That will cause unnecessary conflicts between the management of the schools, the staff and in most cases their unions.
This amendment would provide an element of stability. I hope that the Minister will consider the implications as we go forward with the Bill. I beg to move.
Baroness Morgan of Drefelin
My Lords, I am delighted to support my noble friend's amendment. It may be late, but the contribution that support staff make to our country’s schools is worthy of significant attention. In Committee, I and the noble Baroness, Lady Sharp, reminded noble Lords of the important role of support staff, and I am delighted to support my noble friend's analysis of the challenges that they face with a major expansion of the academies programme. This amendment provides a framework that is markedly different from the national negotiating body that the Minister referred to in Committee. When one looks at the contribution that the 123,000 new classroom assistants have made across the school system, it is important that we take all possible steps to maintain stability in the workforce. A framework such as this would contribute to that. In the past, as the noble Baroness, Lady Sharp, eloquently said, support staff have been undervalued, and we should put in the work to create a new school support staff negotiating body. A lot of work and thought has gone into defining the roles and contribution that the staff make, and this could be a great support, particularly to small academies such as the primary academies that some noble Lords have been concerned to promote. I hope that the Minister will support this approach.
Lord Wallace of Saltaire
My Lords, I hope that the noble Lord, Lord Whitty, will forgive me if at this late stage I do not read out the whole of the 15-page brief that I have been given in reply. We are all conscious of the importance of support staff. From the anecdotal evidence that I have picked up both in Yorkshire and London, many classroom assistants and support staff working in maintained schools are working for remarkably low pay on part-time contracts that do not include lunch. Therefore, this is not simply a question about the transfer to academies: there is a broader question of how we all value the very useful contribution that they make. Having said that, and underlined the fact that it is not just a question of the conditions of support staff in schools that convert to academies, but that the problem exists across the board, I also emphasise that academies are intended to have freedoms over staff pay and conditions. That is precisely the point of freeing academies from the deeply complex, embedded structures of maintained schools across the country. Freedom in relation to pay and conditions has been a core freedom since the academies programme started under the previous Government, and indeed that was part of the reason why the previous Government set it up. It enables academies to establish pay and conditions which reflect their approach to the school day and to attract and appropriately reward innovative school leaders and practitioners.
As academies recruit good support staff, I urge them to value them as well, and perhaps to value them more than some maintained schools under local authority control do at present. Having said that, at this early hour, as it has just become, I urge the noble Lord to withdraw his amendment.
Lord Whitty
My Lords, I am not surprised but am gratified that the Minister did not read out his entire brief. However, he did get us past midnight and I congratulate him on that. It is the first time in this Parliament that I have been in the Chamber at this hour.
The Minister is right to say that the pay is not brilliant in the sector at present, but the framework that was agreed across the country has made the situation much more stable both for staff and for their employers. That was reflected in the Apprenticeships, Skills, Children and Learning Act 2009, which of course has a statutory base and came into force after the previous Government’s academies programme had started. Therefore, we are now faced with a framework which has a statutory base, as well as being a voluntary agreement. As my noble friend Lady Morgan said, it does not precisely lay down the pay rates but it gives a framework within which employers can operate. I should have thought that that would be useful, as my noble friend also said, particularly if smaller academies come through the process in the numbers that the Government hope for.
I would have hoped that the Government would look more favourably on my proposal but, for the moment, and at two minutes past midnight, I beg leave to withdraw the amendment.
Lord Hill of Oareford
“(2A) Section 4(3) (when a maintained school is “converted into” an Academy) applies for the purposes of this Act.”
Lord Hill of Oareford
“(2) An amendment or repeal made by this Act has the same extent as the provision to which it relates.”