18:15 - Division on Amendment 9 - Ayes: 156 / Noes: 245 - Amendment 9 disagreed.
Lord Hunt of Kings Heath
My Lords, I associate myself with the noble Baroness, Lady Walmsley, on Amendment 6. Academies are subject to the same statutory framework in respect of temporary and permanent exclusions as all other state-funded schools, which is welcome. We know that academies have had higher rates of exclusion than other state-funded schools and it is clear that there would be an impact on neighbouring schools if academies in general excluded more pupils but then did not take excluded pupils from elsewhere in the education area.
There are reasons for this in the current academy scheme, where often highly challenging schools were converted into academies and discipline was frequently a top priority. Where there is a large number of academies, it is important that they take their fair share of excluded pupils.
In government, we established a requirement on all schools, including academies, to participate in behaviour and attendance partnerships that involve other schools and have access to support from other children’s services. This was based on a clear understanding of the potential benefits of collaboration between schools and local authorities in the promotion of good pupil behaviour. I can see nothing in the Bill that links the new academies with a requirement to participate in behaviour partnerships. I hope that the Minister can assure us that academies will continue to do so.
I was very much involved in the establishment of NHS foundation trusts and there are clear parallels with academies. Foundation trusts were set up in the context of a statutory duty of partnership. There was a clear recognition of that in the National Health Service, whatever role different organisations played. NHS foundation trusts had a membership and a governing body, so those institutions were standing on their own two feet more than other parts of the National Health Service. Nevertheless, they were still part of the NHS. A duty was laid on them to work with others. It is a pity in some ways that we do not have a similar understanding that there should be a duty of partnership here. The noble Baroness, Lady Walmsley, raises those issues in her group of amendments and we look forward to a constructive reply from the Minister.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, in essence, this group of amendments would put on the face of the legislation requirements that are covered by academy funding agreements. As we know, since their inception, academies have been regulated by funding agreements. That was thought to be appropriate for many years, including by the previous Government and we agree with them. We intend to retain the funding agreement route as the principal regulatory mechanism for academies. I know that I deviated from this principle in relation to SEN, because we recognise that there are specific concerns around that about which I wanted to send a signal. But as a matter of principle, we are keen to stick to the well established idea that these safeguards should be delivered through the funding agreement.
On Amendment 6, I hope that I can provide my noble friend Lady Walmsley with some reassurance. Funding agreements require that academies act in accordance with the law on exclusions as if the academy were a maintained school. They have to have regard to the Secretary of State’s guidance on exclusions as set out in paragraph 1 of annexe D to the funding agreement. I have shared with noble Lords the new version of the exclusions annexe to the funding agreements, which continues to impose these legal requirements on academies. I am happy to put on the record that this annexe will be included in all future academy arrangements, both contractual funding agreements and grant arrangements.
Lord Hunt of Kings Heath
My Lords, the noble Lord said that he had shared that information with noble Lords. It would be helpful to clarify how it has been shared. Certainly yesterday we received a number of letters in the pigeonholes outside the Chamber, which meant that it was available in essence after the first day of Report had started. I hope that we can get those well in advance in future.
Lord Hill of Oareford
I believe that I apologised yesterday to the noble Lord for the lack of notice and do so again. I think I am right in saying that those letters were circulated at an earlier date, but if I am wrong I will put that right.
Regarding the placement of challenging pupils, including those who have been excluded, which I know is a matter of concern across the House, academies are required through their funding agreements to participate in in-year fair access protocols, which ensure that all schools in a local area take their fair share of hard-to-place pupils, including those who have previously been excluded. Academies are equal partners in those arrangements. The requirements envisaged by Amendment 48 in relation to the decision-making process surrounding an exclusion are already part of academy funding agreements and the departmental guidance is very clear about who can exclude a pupil, and in what circumstances the decision to exclude needs to be reviewed by the governing body.
Amendment 50 would require academies to follow the law and guidance on developing and implementing their behaviour policies. Academies are independent schools and are therefore covered by the Education (Independent School Standards) (England) Regulations 2003. These state that an academy must have in place, and must implement effectively, a policy on promoting good behaviour that outlines what sanctions will be taken in the event of any misbehaviour.
As for the specific questions raised by my noble friend Lady Walmsley, we accept that academies are obliged to follow the Human Rights Act and, if they were not following it, we would expect the YPLA as the academies’ monitoring body to identify that. As for exclusions, academies are treated in the same way; the main difference from maintained schools is that the academy trust, rather than the local authority, is the body responsible for setting up an appeal.
The noble Earl, Lord Listowel, did not speak to the amendments on teacher quality, and there was an amendment that was to have been spoken to by the noble Lord, Lord Whitty. I confirm for the noble Lord, Lord Hunt, the point that I made earlier, on which, fortunately, I was right. The annexes on exclusions were circulated on the second day of Committee, on 23 June; I should be happy to dig them out and circulate them again.
I hope that that provides some assurance on exclusions on the overall points. My noble friend Lady Walmsley made some specific points; if I have not responded to them, I shall follow them up with her separately outside the House or in writing. On a general point, which links to some of the discussion that we had yesterday, I hope that the suggestion that there should be an annual report to Parliament on the whole of academies policy will provide some further reassurance to noble Lords that these important issues relating to the development of policy will be kept firmly under review. I hope that that picks up on some of the points made by my noble friend Lady Walmsley. I ask her in light of that to withdraw her amendment.
Baroness Walmsley
My Lords, I am most grateful to my noble friend for his reply and to the noble Lord, Lord Hunt, for his support. I am very much reassured by his very clear statement that academies will have to comply with the law and with guidance as it is already laid down and that the annexe to which he referred will be included in the funding agreement. I got a copy of the annexe somewhat earlier than I got a copy of the whole funding agreement model, which I received only yesterday; that was why I was able to quote from it. I have not yet carefully scrutinised the rest of the funding agreement.
I am grateful to the Minister for stating again that academies will have to comply with the Human Rights Act. I am sure that not only the YPLA will be watching to make quite sure that they do so. If they follow the legal requirements introduced by the previous Government and the guidance that still stands, there should not be problems about exclusions. I am also comforted by the fact that we will have the opportunity every year to see whether the figures for exclusions in academies of both kinds—both the ones from failing schools and those from outstanding schools—have risen at all. If there are any discrepancies that we feel are inappropriate, we will have the opportunity in Parliament to have a look at that. I know that my noble friend was not prepared for my comment on the 24 hours’ notice, so I look forward to his letter about that issue. I am very much reassured by many aspects of his reply and I beg leave to withdraw the amendment.
Lord Blackwell
My Lords, briefly, I ask the Minister to consider Amendment 10A in the name of my noble friend Lord Lucas. The whole purpose of academies is to enable good schools to become even better schools. The benefit of good schools in an area is that they ought to be able to provide such opportunities for as many children as possible.
One of the problems of the current admission system is that it ends up, in practice, turning into selection by house price. In other words, the good schools that become better schools tend to be in areas where parents move in and house prices rise. In that situation, poor schools and their pupils who live in neighbouring areas do not have the choice of getting the benefit of being able to apply to the better school next door. Indeed, schools in poorer and often disadvantaged areas have no incentive to improve. They do not have any competition, because they have in effect a monopoly of access in the local catchment area. There is a wholly beneficial argument for saying that if we allow good schools to develop by becoming academies, it would be socially desirable to allow all children from within a feasible area around that school who chose to apply to gain the benefit of being able to go to that school, rather than only the children of parents who happened to be able to afford to live nearby. It is wholly in favour of social mobility to widen admission as far as possible.
I would go further, as I argued at Second Reading. Contrary to the noble Lord, Lord Knight, I believe that there should be a place for selective education in the state system. That, too, would help social mobility. I accept that that is not the spirit of the Bill or the policy of the Government, and unfortunately there is nothing in the Bill that would allow that to happen. Therefore, I certainly would not support the amendments that try to go further in restricting admissions freedom, although Amendment 10A merits consideration.
Lord Hill of Oareford
My Lords, these selection issues are important, and I know how important it is that I provide as much reassurance as I can. I know that when I met the noble Lord, Lord Hunt, and Members on the opposition Front Bench, he was very clear, and I obviously understood, that selection is a touchstone issue that is extremely important to the party opposite. I hope that he will also accept by the same token that that is extremely important to Peers in the coalition Government. As the noble Lord, Lord Knight, said, my right honourable friend the Secretary of State has made it very clear that he is not interested in fighting old battles and reopening the question of selection, which I know will disappoint my noble friend Lord Blackwell. I hope, therefore, that I can provide some of the reassurance that noble Lords opposite and on these Benches have been asking for.
In part, one of the issues underlying all this, and which we touched on in the first group of amendments, relates to the reassurances provided through the funding agreement. That remains the case. Amendments 8 and 10C would require academy arrangements to include terms that provided that academies be treated as maintained schools for the purposes of their admissions policy under the schools admissions code. As I previously confirmed and my noble friend Lady Walmsley made clear, academies must comply—as is the case with maintained schools—with admissions law and the codes, and that is achieved through the funding agreement. I confirm that all future academy arrangements will contain this requirement. This is not, as some may fear, a voluntary requirement but a contract that is enforceable by the Secretary of State. The approach is consistent with that taken by the previous Government, who never sought to require in legislation academies' compliance with the admissions code. We do not see any reason to change that.
I will respond to one question from the noble Lord, Lord Knight. There may be other points on which I will have to speak to those excellent officials to whom he referred, and write to him. The detailed admission arrangements are in the annexe to the funding agreement that was shared with noble Lords earlier, perhaps before the noble Lord joined the House—I am not referring to the one that we shared yesterday. The model funding agreement published yesterday makes it clear that academies will continue to be bound by the same arrangements.
Amendment 10A, tabled by my noble friend Lord Lucas, seeks to remove the requirement that an academy should provide the majority of places for pupils who are wholly or mainly drawn from the area in which it is situated. We discussed this in response to amendments moved by the noble Lord, Lord Adonis, who was particularly concerned about boarding schools and those with a particular specialism. The words “wholly or mainly” require that more than 50 per cent of the pupils of an academy are drawn from the area in which the school is situated. My noble friend Lord Lucas asked why one should not simply do away with this. We believe that the requirement that an academy is a local school is important, as we want to ensure that local children have access to good quality schools. I think that point is welcomed by Peers on all sides of the House.
The phrase,
“the area in which the school is situated”,
like many such phrases, must be set in context. In practice, it depends on the nature of the school. If the academy is a boarding academy, or an academy with a particular specialism, the area could be very much wider than that which would be applicable in the case of an academy without special features. That is how it has worked in practice. We discussed this in Committee in the context of boarding schools and schools with a particular specialism. Following that debate, I pursued the point with officials, because I wanted to make sure that that was the understanding. The definition has not proved to be a problem in practice. I am very happy to write further to my noble friend Lord Lucas to follow up on his specific points.
Amendment 17B seeks to include provisions in academy arrangements to ensure compliance with academy characteristics, while Amendment 33A seeks to achieve similar aims by allowing selective schools to continue to select by ability. As I said in Committee, the Bill requires that the academy arrangements will oblige the academy proprietor to comply with the Clause 1(6) characteristics when establishing and running an academy. The Secretary of State ensures at the outset of an academy project that the academy meets those characteristics. Thereafter, compliance with them, and with all aspects of the funding agreement, is monitored by the Young People's Learning Agency. If anyone has concerns that an academy is not complying with the required statutory characteristics or the term of its arrangements, this can be brought to the attention of the YPLA or the Secretary of State, who will look into it and take appropriate action.
Amendment 32A, in the name of the noble Baroness, Lady Royall, seeks to prescribe in legislation a requirement that would prevent a selective school from increasing admission numbers once it becomes an academy. The Bill contains provisions that allow selective maintained schools to retain academic selection if they become academies; but, as we have discussed and as I am happy again to put on the record, it does not allow for new selection.
One point that perhaps has not been made before is that any independent school seeking to become an academy, which people may worry is a possible back-door route, would have to cease to be selective. As the noble Lord, Lord Knight, pointed out, under current legislation, the Education and Inspections Act 2006, any maintained school, including a selective school, may increase its admission number as part of any changes to its admission arrangements, subject to consultation. We propose no change to this in the Bill; in fact, we seek to maintain the status quo. The amendment would reduce the right to expand for one set of schools. It seems wrong to bar one set of successful schools from responding to demand for more places when that opportunity is currently open to them in the maintained sector.
Finally, I turn to the issue of faith schools raised by Amendment 32B, and I shall speak in support of the right reverend Prelate the Bishop of Lincoln. We had a keen debate about faith schools in Committee. As is rather the case with selection generally, the aims of the Bill in relation to faith schools are very modest, and the right reverend Prelate made the point well and fairly. We are simply asking to maintain the status quo, which I think is the point that he made. Nothing in the Bill will make an increase in faith schools easier, nor is there anything that seeks to change their character, but we believe that a faith school should have the same chance to become an academy as any other maintained school. We are not convinced that it would be right for faith schools seeking to convert to academy status to have to go through an additional application process simply to stay as they are. We think that designated faith schools are a key element of a diverse school system, and that they provide parents with an important choice.
We know from experience that academy arrangements involve a sufficiently robust safeguard. Earlier, we heard about a Trojan horse. In reply to the right reverend Prelate, it did not work out very well for the Trojans, or indeed for most of the Greeks. There is no back door to selection in the Bill. Having gone into this matter carefully and listened to the points made from the Benches opposite as well as from this side of the House, I believe that that back door is locked, bolted and padlocked. I hope that that reassures the noble Lords who have spoken and, in the light of that, I ask the noble Baroness to withdraw her amendment.
Lord Lucas
Before my noble friend sits down, can he give me some comfort on clause 12(c) of the model funding agreement? What is it about clause 12(c) or other aspects of the funding agreement which mean that, when the admissions requirements for maintained schools are updated, they are updated also for academies? The default position in contract law would be that they were not updated.
Lord Hill of Oareford
If I may, I shall need to write to my noble friend to make that specific point clear, and I shall circulate it to the House.
The Earl of Listowel
Before the Minister sits down, I should say that I am very grateful to him for the pains that he is taking in this area. Will he consider whether the annual report should actively look at this area and keep it under review?
Lord Hill of Oareford
I hope that the noble Earl will forgive me. He made that point very clearly earlier and I am sorry not to have responded to it. This report is rapidly assuming biblical proportions. There seem to be a whole range of issues arising from this debate that noble Lords from around the House will want to make sure are looked into very carefully and debated properly. I am sure that the point that the noble Earl has made is just one such example.
Baroness Royall of Blaisdon
My Lords, I am grateful to the Minister for his very full response. I certainly accept that there is nothing in current legislation stipulating that academies must abide by the admissions code. I accept that the safeguards are adequate for 200-plus academies but when it comes to 2,000-plus, which there may well be if free schools become academies, then perhaps greater safeguards are needed.
I tend to agree with the right reverend Prelate the Bishop of Lincoln that sometimes it is necessary for things which are implicit to be made explicit, as that inspires confidence. I certainly urge the Minister to take the opportunity to make explicit the fact that academies have to abide by the admissions code by putting that into the Bill. However, I accept the arguments that he made and beg leave to withdraw the amendment.
Baroness Morgan of Drefelin
My Lords, it is with great pleasure that I rise to support my noble friends Lady Massey and Lady Gould. I was also particularly moved by the remarks of the noble Baroness, Lady Howarth. It is extremely important that, if my noble friend chooses not to divide—and I do not know what her choice will be—we hear from the Minister what practical steps the Government will take on this key agenda. I was interested to hear again from the noble Baroness, Lady Walmsley, her exultation about the work of the previous Government around the proposals contained in the Children, Schools and Families Bill, which were removed on the specific request of the Conservative Opposition, as the noble Lord is aware. Before the election we had a set of principles and proposals that commanded the support of a significant part of the coalition Government and of a great number of noble Lords across the House.
My noble friend Lady Massey came forward with a very thoughtful proposal; she did not just reproduce what was in the Children, Schools and Families Bill, which the Government can do at any time just by going back to the filing system or doing a cut and paste. Here we have a practical step forward for going forward in this Bill. That is why I should like to have the opportunity to support the amendment. I see no reason why we should delay. Noble Lords have raised concerns about the numbers of teachers qualified to teach PSHE, but we have been reassured on that. There have been concerns about whether we are talking about teaching sex education to children inappropriately in primary schools. In all the debates we have had there have been umpteen reassurances about age-appropriateness. I do not think that this should be a party-political issue. It is very much a House of Lords issue, as it is very much something that the House of Lords has debated many times. We came up with a very constructive way forward only a few months ago. There is no good reason for us to delay any further.
If the Government want to bring forward any tidying-up amendments at Third Reading, that is very much in their gift. It can be done. We are all behind the principles that the noble Baroness, Lady Walmsley, described, which were in the previous Bill. They are great—yes, we could see those come forward at Third Reading. I see no reason to delay, as this is about common sense and supporting the professionals. I am delighted that they gave my noble friend Lord Knight a standing ovation when he addressed the professionals in this field. We can get on with this. It is a regret of mine that it took us, in a Labour Government, as long as it did to consult and come to consensus and to the settlement that we did. It took us a while, so let us not take any longer.
Lord Hill of Oareford
My Lords, we had a very good debate on this subject in Committee, a slightly longer debate than the one that we have had today. We have had another very good debate this afternoon. I had the chance last week to meet Peers with a particular interest in PSHE and was grateful for their advice. I join others in paying tribute to the noble Baroness, Lady Massey, for the way that she has pursued this issue, as have my noble friend Lady Walmsley and many other noble Lords from all parts of the House. I have learnt a lot from noble Lords in the process, not least about knitting from the noble Baroness, Lady Massey—a reference lost on those who were not here for the Committee stage.
What is clear to me, who comes relatively new to this debate, is that there is broad agreement in this House on the importance of PSHE. Nothing has been said today by anyone from any part of the House that would disagree with that. There are differences of opinion about the best way forward. This evening the question is relatively simple and straightforward, so I think I can be brief. This is an important and broad subject. Should we, as this amendment argues, make PSHE a compulsory requirement for academies alone as one distinct set of schools and should we act now? Those are the two main questions that have been debated this evening. I would argue not. First, as others have said, I am not convinced that singling out PSHE in primary legislation is the right way to go. Secondly, I would argue, as a number of noble Lords have argued—it was argued very persuasively by the right reverend Prelate the Bishop of Lincoln—that the best place to consider these issues is in the round, when we get the chance to look at the whole question of the national curriculum later in the year. Noble Lords have already mentioned that we are carrying out a complete review.
In response to the question from the noble Baroness, Lady Murphy—
Lord Hill of Oareford
Forgive me. I cannot be more specific than to say that we expect that the review will take place in the autumn, and it will have a proper look at the entire national curriculum. I know that when that process starts, and as part of that review, noble Lords will not hesitate to make their views known. There will be plenty of opportunities to debate it in the round at that point in the context of the whole curriculum rather than, as many noble Lords have said today, in more of a one-off way now.
I am swayed by the comments that have been made about having the debate later. This is not to dismiss the case made by the noble Baroness, Lady Massey. It is, however, to ask her and other noble Lords whether in the light of these points they will withdraw their amendment at this juncture, having made clear their intention to return to the charge at a later date.
Baroness Massey of Darwen
My Lords, this has been a fascinating and enlightening debate. I think that we are all actually on the same side; we just have different ways of approaching the issue.
I am aware of the curriculum review, but I have been aware of curriculum reviews on this subject for the past 10 years. We have gone over this ground, and in doing so I am also aware of the needs of children who may well be suffering because they do not have this education in their curriculum. Young people tell us what they need, and they certainly tell us that they need personal, social and health education.
I shall respond briefly to points that have been made. I put this amendment in here because the Bill is here, and because I shall continue to put it in any Bill that I can to try to get personal, social and health education in the curriculum.
It is a simple amendment because it is a complex subject. We have explored all possible areas connected with PSHE, today and previously. The noble Baroness, Lady Walmsley, mentioned the five principles put in place by the Labour Government, and they are still there for reference. I was surprised; I just reread the noble Baroness’s speech at wash-up stage, and at that point she wanted no delay, she wanted to get on with it and she was anxious that PSHE should be part of the national curriculum. I support her.
Much work has been done already—
Lord Hill of Oareford
“( ) Academy arrangements in relation to a school within subsection (5)(a)(i) must include provision imposing obligations on the proprietor of the school that are equivalent to the SEN obligations.
( ) “The SEN obligations” are the obligations imposed on governing bodies of maintained schools by—
(a) Chapter 1 of Part 4 of EA 1996 (children with special educational needs), and(b) regulations made under any provision of that Chapter.”
Lord Hill of Oareford
My Lords, I shall seek to be brief with this amendment as I have already written to noble Lords about it and we discussed these issues at length in Committee.
The purpose of this government amendment is simple; it is to ensure that the obligations placed on academies in respect of SEN mirror those placed on maintained schools. I said early on in Committee that I could not see in principle why one set of state-funded schools should treat children with SEN any differently from another set of state-funded schools. Having listened to the points that were raised in debate and having had a number of subsequent meetings on SEN with noble Lords who are far more experienced than I, my initial instinct has been confirmed and I am very glad to have this opportunity to move this amendment, which should put the principle of parity beyond doubt.
As noble Lords are aware, academies are already required, through their funding agreements, to provide for pupils with SEN in a similar way to maintained schools. Noble Lords will also know that the funding agreement has been the main regulatory mechanism for academies since their inception, as we discussed this afternoon. We agree with the previous Government that this should continue. We could therefore have ensured parity through the funding agreement alone. However, we decided to go further. This amendment acknowledges the particular concerns that have been raised in relation to SEN and will therefore put into the Bill a requirement that academy arrangements—either funding agreements or grants—must contain provisions that impose obligations that are equivalent to those that are imposed on maintained schools in Part 4, and in regulations made under Part 4, of the Education Act 1996. This means that no funding agreement could omit these provisions unless further primary legislation were made to remove these requirements.
In practical terms, the amendment imposes additional obligations on academies to: inform parents that their child has SEN and of the special educational provision being made; accept the naming of the academy on a child’s statement; and appoint as a SENCO a person who is a qualified teacher. Moreover, new SENCOs will have to undertake prescribed training. It will apply to any new academy and to any existing academy that enters into new funding arrangements.
At this point I would also like to put on record the reassurance I gave the noble Lord, Lord Rix, at our meeting on 1 July that it is the Government’s policy that academy special schools should offer a broad and balanced curriculum that meets the needs of an individual child as specified in their statement of special educational need. I am very pleased to have the chance to move this amendment. I hope that it will provide assurance that the SEN obligations on academies will mirror those that are placed on maintained schools. I beg to move.
Lord Low of Dalston
My Lords, I wish to speak to Amendments 12 to 14 and to Amendment 39, all of which are in my name. I very much welcome government Amendment 11, to which the Minister has just spoken. In Committee, there was a widespread concern throughout the Chamber to ensure that academies were put on the same footing as maintained schools as regards admitting and meeting the needs of pupils with special educational needs. The Minister said then that he would reflect and come back with proposals on how parity could be achieved. As we have heard, he has been as good as his word. I am very grateful to him for this and for the time and trouble that he has taken to meet Peers to discuss their concerns. I am also most grateful to officials for the time that they have taken to make sure that we get this absolutely right.
For my part, I think that we have very nearly got it right, but not quite. That is why I have put down the amendments to which I am speaking this evening. I spoke on this at some length in Committee, so I shall not weary the House by going over the same ground all over again. The Minister has met very many of the concerns that I raised in Committee, but one or two issues still remain. The first is whether the new provisions will relate to existing as well as new academies. In moving his amendment, the Minister has clarified that because he has said that they will do so. However, I think he said that they would apply to existing academies when they entered into a new agreement. That could be some years away. I hope that the Minister can reassure us that steps will be taken to apply the new provisions to existing academies at the earliest possible date and not necessarily waiting several years before doing so.
Secondly, there is the question of whether obligations that are equivalent to the SEN obligations in the Minister’s amendment are the same in their effect as the SEN obligations. If not, it will be argued in court that Parliament’s decision not to make these obligations direct statutory obligations must indicate an intention to permit variation from the statutory framework. I should therefore be grateful if the Minister could confirm that the intention is for academies to be subject to exactly the same obligations as maintained schools as regards admitting and meeting the needs of pupils with special educational needs, which the notion of parity would imply.
My main concern is with the enforceability of the rights implied by these obligations. The Minister has chosen to confer the obligations by importing the statutory SEN framework into the contractual framework of academy arrangements. These are contractual agreements between the Secretary of State and an academy to which parents and pupils are not a party. There is a complex legal argument as to whether the duties imported into academy arrangements by this means are enforceable by parents or pupils. I shall spare the House all the legal technicalities, but there are essentially three ways that one might seek to ensure that the duties are enforceable.
The first is by laying on academies the same statutory obligations as those laid on maintained schools directly by statute, not by statutorily importing them into a contract. That is what my Amendment 14 would do and I still think that it is the simplest and surest way to achieve my aim, which is why I have tabled that amendment again and why it would save a lot of bother by putting everything beyond doubt, if the Minister agreed to it.
Assuming that the Minister’s preference is to proceed by the contractual route and to maintain the contractual relationship with academies, there are two further ways that one might seek to enforce the contractual obligations. One is through a complaints procedure and the other is by making it clear that pupils and parents can enforce their rights by judicial review.
As for complaints procedures, complaints would presumably be made to the Secretary of State, but there is nothing that establishes such a procedure and nothing is proposed. Even if there were, it would need to be clear that if the Secretary of State found that an academy had not complied with the relevant provisions of the academy arrangements, he would require the academy to comply, and the arrangements would need to make clear that he could compel compliance. This would place a considerable additional burden on the Secretary of State, whose process for dealing with complaints is already widely perceived to be slow and ineffective—as is illustrated by the fact that it is never suggested by defendants in proceedings for judicial review that the court should decline jurisdiction because a complaint to the Secretary of State would provide an effective alternative remedy.
As for judicial review, the availability of this remedy could be put beyond doubt simply by making clear that the rights accorded to pupils and parents under academy arrangements could be enforced through judicial review. This could be done on a narrow basis relating to SEN only, as is provided for in Amendment 12, or on a wider basis covering all rights given to parents and pupils, as provided for in Amendment 13. Amendment 12 would sort out the problem relating to special educational needs, but would, if anything, weaken the position in relation to other rights—say, those relating to admissions—because it would imply that those rights could not be enforced through judicial review.
The Minister has shown himself to be very accommodating of our concerns in the quest to achieve full parity between academies and maintained schools. I hope that further discussion may be possible before Third Reading, with a view to finding a formula which would ensure that enforceability is not only a reality, but is seen to be a reality, either through a robust complaints procedure or by putting it beyond doubt that judicial review is available as a remedy.
Something along the lines of Amendments 12 or 13 would do the job for judicial review, and I have suggestions for a robust complaints procedure that I would be happy to put to the Minister. Amendment 39 begins the job, but even that requires fleshing out in some respects to reflect the ingredients of a robust complaints procedure. If the Minister would be happy to proceed along these lines, I am sure that we could reach an arrangement that would put enforceability beyond doubt and would be satisfactory to everyone. If full parity is the Minister’s aim, I cannot see a reason not to do this.
The Earl of Listowel
My Lords, I support what the noble Lord, Lord Hunt of Kings Heath, said about health service reforms and the difficulty with regard to specialist health services. The National Society for the Prevention of Cruelty to Children runs such a specialist service in Kentish Town, north London. It works with children who sexually harm other children. It is a very intensive service. If these children are not given the service that they need, they sometimes go on to become adults who continue to abuse children. It is a very important service, but it has proved difficult for the NSPCC to get the funding that it needs through applying to local PCTs. This is one example of where regional planning and funding can be very helpful. I hope that the Minister will keep in mind what the noble Lord said.
Lord Hill of Oareford
My Lords, I start by thanking various noble Lords for their support for the government amendment. In particular, I thank the noble Lord, Lord Low, for his thanks to my officials, who I know have worked extremely closely with him and his advisers. They have spent so much time working on this that they have almost moved in together.
I will respond to the points made by the noble Lord, Lord Hunt, rather than to the noble Baroness, Lady Wilkins. He asked whether the Government were aware of the issue and whether we were thinking about what to do if the issues that he alluded to came to pass. The answer is yes. It is a fair point and we will no doubt return to it later.
The question of funding is a fiendishly complicated area, because some aspects of SEN funding, and the responsibility to discharge it, will remain with the local authority and some will not. Rather than trying to answer in detail, it is probably better if I respond subsequently and pick up on the points. I will respond to one specific question concerning the funding of non-maintained special schools. There are no plans to change the funding arrangements for those schools. I will respond in a more considered way in writing if I can.
I may be able to offer the noble Lord, Lord Low, some—but probably not total—comfort. I am happy to confirm that parents have always had the power to seek judicial review against either the academy for failing to follow its contractual obligations or the Secretary of State for failing to ensure that the academy complies with its obligations under the funding agreement. It would be unique in law to provide for judicial review to apply in particular circumstances. I am advised that the issue of whether any person can apply for judicial review will be determined by the courts in accordance with Civil Procedure Rules. The Government's view is that the issue should properly be determined by the courts, and the House may not wish to set a precedent in this area. However, I can perhaps help the noble Lord a little by saying on the record that in recognition of his concerns, we will place a new provision in academy funding agreements that will enable the Secretary of State to direct an academy to fulfil any of the obligations imposed by the SEN annexe of the funding agreement. The agreement already enables the Secretary of State to direct an academy to admit a child.
As far as concerns a new timetable for the complaints process, I am sure that, as on many issues, we will discuss these matters further in due course. The YPLA currently administers a complaints process on behalf of the Secretary of State. I entirely accept that that process is necessary and confirm that we intend to continue to provide for it. A question was asked about the first-tier tribunal. Yes, parents and pupils will continue to have access to that.
I will answer the point raised by my noble friend Lord Lucas. The nature of the contractual agreement—what is at the heart of it—is that neither side can vary it unilaterally. Our expectation is that many academies will want to move to the new, simplified model funding agreement, which will introduce these provisions on SEN. In the light of those points and the answers that I hope go some way towards responding to the noble Lord, Lord Low, I hope that he will not press his amendments. We will no doubt continue to discuss these matters later.
Lord Hill of Oareford
My Lords, I start by saying to the noble Baroness, Lady Howe, that I agree with her that—as everyone, including the noble Lord, Lord Puttnam, said—governors are key. I agree with her strongly on the vital role that governors play in schools and, in particular, the important contribution that parent governors have to make. We have spoken before outside the House, and I am keen to meet her and the NGA. I apologise that I have not been able to do so so far, because I have spent most of my waking hours in the House. I should like to talk to her and the organisation about how one can attract more parent governors and whether there are current obstacles to that—restrictions placed on them, and so on. I hope that she will accept my apology if she feels that I have not sufficiently stressed the importance of governors, and of parent governors in particular, because I feel that very strongly.
There is no difference anywhere in this House about the importance of governors and parent governors. Where there is a difference of opinion, I find myself agreeing with the noble Baroness, Lady Morgan of Huyton. The best way to go is to be less prescriptive and to trust people to get the right mix of people for a particular school. Should one set out from the beginning that there should be a certain proportion of different kinds of person whom one has to have, whether or not they are the best people for the job? As noble Lords might expect, I incline to the view of expressing the strongest possible endorsement of the importance of the role of governors and the wish to see parent governors involved, but leaving it to individual governing bodies and trusts to decide in their particular circumstances what is the best mix of people. Like many noble Lords, I have been a governor of a couple of schools for many years, and I have seen that having a broad mix of people tends to make for good governance decisions.
Where I take issue and am keen to resist, and where I know that I will not satisfy the noble Baroness, Lady Howe, and other noble Lords, including the noble Lord, Lord Puttnam—I apologise if he thinks that I am clumsy—is the degree of prescription in the amendment. As has often been the case since I have been in my job, I have been happy to praise the former Government for things that they did right. One thing that they did right was to come up with an approach to governance for academies which was sensible and has stood the test of time. It still applies in the new circumstances in which we find ourselves.
The new free schools are a good example of parental involvement, and one would imagine that parent governors will be a high proportion of governors—so high that some in this House have argued that there will be too many parents involved in setting up a new school. In some ways, that illustrates the point: what is the right number?
I certainly stick to the point that there are many examples where academies have chosen many parent governors to sit on the governing body. We hope that that will continue. However, on a point of principle—in all areas, and where it makes sense; we think that this is an example—the Government do not want to go down the prescriptive route. We want to stick with the approach to the governing bodies of academies of the previous Government.
We touched on the specific question raised by the noble Lord, Lord Lucas, before. The answer to his question is that the arrangements for the election of a parent governor or parent governors of an academy will be set out in the articles of association. The election of parent governors must be by the parents of pupils attending the academy.
Baroness Sharp of Guildford
Do the Government intend to move from parent governors being appointed to there being elections for parent governors? That would be a great step forward.
Lord Hill of Oareford
There will certainly be election. I must apologise, but I am not currently 100 per cent sure whether there is provision for election or not, and I will need to follow that up, but there will be election.
I was headed toward saying to the noble Baroness, Lady Howe, that I am sorry not to be able to be more helpful. I understand her point. I hope that she will spare the time to meet me with the NGA to talk about the matter more generally but, at this juncture, I ask her most respectfully to withdraw her amendment.
Baroness Howe of Idlicote
My Lords, I very much thank the Minister for the consideration that he has given. Of course, I am hardly completely satisfied, as he will understand. The conversation that followed the initial moving of the amendment expressed the view that we all share about the importance of governing bodies. I suspect that many other people in this room have been governors at some stage of their life. My experience goes back many years, to when there was not a great deal to be done other than consider meals and milk. I particularly thank the noble Lord, Lord Puttnam, for his contribution, because he put it in the wider community sense, and the noble Baroness, Lady Williams, for her point about the democratic process: how, so often, becoming a governor of a local school sparks off the base of the big society—as the Conservative side of the coalition was keen to put across to us all.
I will leave it at that. I thank all noble Lords, because quite a number spoke. I will withdraw my amendment and I certainly hope to have a meeting with the Minister and members of the NGA.