22:45 - Division on Amendment 26 - Ayes: 44 / Noes: 111 - Amendment 26 disagreed.
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 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.
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 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
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 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.
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
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 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 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.”