Monday 13th June 2022
(2 years, 5 months ago)
Lords ChamberSchools Bill [HL] 2022-23 View all Schools Bill [HL] 2022-23 Debates Read Hansard Text Amendment Paper: HL Bill 1-III Third marshalled list for Committee - (13 Jun 2022)
Baroness Barran
Member’s explanatory statement
This amendment removes clause 2(6), bringing the treatment of secure 16 to 19 Academies under that clause in line with that of other Academies. This means that if an Academy standard applies to secure 16 to 19 Academies, this can trump any corresponding contractual provisions.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, I turn first to the government amendments in my name. The majority of these represent technical amendments to deliver the policy as intended, extend consultation requirements to existing measures and otherwise clarify the intent of the Bill.
Baroness Chapman of Darlington (Lab)
I apologise, but I want to intervene on the Minister before she gets too much into her stride. I want to put on record the disappointment from these Benches that these amendments, which we do not consider to be simply technical or minor, are grouped together. It is a shame, because we would have liked to debate them separately. Can the Minister bear that in mind as we come to Report?
Baroness Barran (Con)
Of course, we will take that into consideration. I was not aware of the noble Baroness’s concerns. To echo that, there are two measures which are more substantial, which relate to secure schools and a prohibition order as part of our enhanced suite of powers to tackle unregistered schools.
I turn first to Amendments 30, 42 and 76, relating to secure schools and their particular context. Secure schools place education at the centre of the response to supporting children in custody, to reduce reoffending and improve children’s life chances. They will be established as both secure children’s homes and secure 16 to 19 academies using the academies framework as a basis for opening.
Secure schools’ funding agreements require unique provisions that reflect their context. Clause 2(6) was drafted to ensure that future new academy standards would not invalidate those unique provisions. We have now confirmed that primary legislation is not required to achieve that because new standards can be selectively applied within the standards themselves. Amendment 30 therefore removes Clause 2(6) as unnecessary to the functioning of the Bill.
Turning to government Amendment 42, Clause 8 requires the Secretary of State to provide seven years’ notice if they wish to terminate funding for an academy to ensure continuity for all year groups. Because children will generally spend fewer than two years in a secure school, Amendment 42 will modify Clause 8 to reduce the termination notice period from seven to two years for secure schools.
Amendment 76 introduces provision for secure schools covering payment termination notices as well as local impact considerations and consultation requirements. On payment termination notices, it amends the Academies Act 2010 to make it consistent with Amendment 42. Section 2 of the 2010 Act places a requirement on the Secretary of State to give seven years’ notice before ceasing payments to an academy. For the reasons I set out when discussing Amendment 42, this amendment will modify the Act to reduce this notice period to two years. Existing consultation requirements for academies include the requirement that the Secretary of State consider the impact of new academies on existing schools in the area. Given that the secure school will not be recruiting from the local area in the same way as local schools, we seek to disapply this requirement to secure schools.
The Academies Act also requires providers to consult relevant persons, such as local residents, on whether an academy arrangement should be entered into. Our view is that there will be a wide and complex range of views on the location of a secure school that the Government will wish to engage with. A “yes or no” consultation on a secure school is less likely to promote this engagement and, instead, the consultation will focus on how the secure school will work with local partners.
I acknowledge that Amendments 76A and 76B have been tabled to Amendment 76 in my name, and I shall respond to the comments from the noble Lord, Lord German, in my closing remarks.
Amendment 40 relates to academy trust standards. Clause 7 allows the Secretary of State to replace an entire trust board with a board of interim trustees. The amendment makes specific provision for the Secretary of State to consult the relevant religious body where the trust includes academies designated as having a religious character. It takes account of the fact that religious bodies have a particular interest in the governance of academies with a religious character, as reflected in those academies’ articles of association. Where the Secretary of State intends to appoint an interim trustee board, the religious authority will rightly wish to be assured that arrangements are in place to safeguard academies’ religious character. The amendment will ensure that religious bodies are able to make representations before any decision is made to appoint an interim trustee board.
I now turn to the five amendments relating to termination provisions for academy agreements and master agreements. Amendments 43 to 46 and 48 in my name relate to the termination procedure to be followed where a 16 to 19 academy is judged by Ofsted as not providing an adequate quality of education or training, or if the Secretary of State is of the view that boarding accommodation at an academy does not meet the required standards. The effect of these amendments is to apply the termination procedure which applies when an academy is judged inadequate by Ofsted, and it ensures consistency of approach. It also replicates the termination procedure currently provided for in funding agreements in these circumstances.
Amendment 47 expands Clause 11 so that it applies to academy agreements as well as master agreements in the case of a change of control of the trust or an insolvency event occurring. This means that the termination power will apply to a single-academy trust as well as a multi-academy trust. This is a corrective amendment to ensure that the legislation accurately replicates provisions in existing funding agreements.
Baroness Barran (Con)
My Lords, I thank your Lordships for your contributions. I confess to being puzzled about the concerns on groupings, because those were agreed through the usual channels. Colleagues will obviously have heard the concerns expressed today, but we did go through the normal process and were not aware of some of the points raised.
Lord Hunt of Kings Heath (Lab)
My Lords, with the greatest respect, I say that the Government put those amendments into one group. Only movers of amendments can remove amendments from them so, as far as ordinary Members of the House of Lords are concerned, we were presented with a fait accompli about which we could do nothing.
Baroness Barran (Con)
As the noble Lord heard me say, this was agreed through the usual channels where we could have discussed that, had serious concerns been raised. The point has been heard loud and clear but I wanted to give the context. A number of points have been raised which I will aim to address, but I start by thanking the right reverend Prelate the Bishop of Bristol for her support on Amendment 40.
I turn to Amendments 76A and 76B tabled by the noble Lord, Lord German, and presented today by the noble Baroness, Lady Garden, in relation to Amendment 76 in my name on secure schools. Regarding Amendment 76A, the Government remain open to considering any objection to the opening of a secure school. We expect that if the question were framed in this way, however, most local concerns about opening a secure school would focus on its custodial nature. These concerns may very well be valid. However, the secure school provider is not realistically able to address issues with the fundamental character of the school. Instead of consulting on whether a secure school should open, we propose that the provider must consult on how it should work with local partners. That, we hope, should ensure that the consultation is focused on issues that the provider is empowered to address.
Connected to this, Amendment 76B, which proposes to include local government in the consultation requirement, would not result in any material change. This is because the secure school provider must consult on how it will work with local partners, and the definition of local partners that we have used already includes any person
“whose functions are functions of a public nature”,
as set out in Section 6 of the Human Rights Act 1998. The noble Baroness asked if there were any changes in relation to planning. There is clearly no intention to evade planning regulations. She also asked whether the position of the local authority had changed. Of course, more broadly, the position of local authorities will change, given that we intend to give them powers to set up multi-academy trusts, which they have not historically been able to do.
The noble Baroness, Lady Chapman, raised concerns about the potential scope of the proposed education and childcare behaviour orders, while welcoming the principle behind them. I reassure her that while these orders have been designed to be broad in scope, their use will be focused. The court can exercise discretion to impose an order only if it considers it appropriate to do so, and it would be appropriate only for the purposes of protecting children from the risk of harm arising from a defendant re-committing an offence of conducting an unregistered independent educational institution.
We intend for these orders to prohibit activities taking place only in specified settings at specified times of the week, rather than them being a sweeping power. In sentencing, the courts must do so proportionately, so it is not our intention that these orders should prohibit someone working in a setting that is already subject to another regulatory regime. Other regulatory bodies, such as the Teaching Regulation Agency, may wish to take action against those found guilty of conducting an unregistered school but these orders are not designed to interfere with that work. Their aim is to prevent the behaviour which has led to some being prosecuted for conducting an unregistered school, not to interfere with someone’s activity beyond that.
Baroness Chapman of Darlington (Lab)
I am grateful; that is helpful. Does the Minister intend to publish any guidance or examples? At the moment there is nothing, as drafted, to say whether these orders will be about someone’s professional ability to engage in running an illegal school or if it will impinge in other areas of their life and their contact with children. There is nothing to give us any guidance about this at the moment.
Baroness Barran (Con)
I undertake that we will provide guidance—in inverted commas—whether that is formal guidance or setting out examples in a letter as the noble Baroness suggests. I will need to check with colleagues as to the most appropriate way to do that. I am happy to undertake that we will provide a full explanation, as she rightly requests.
My noble friend Lord Baker, the noble Lord, Lord Knight, and others, questioned whether the measures in the Bill would affect an academy trust’s charitable status. I am pleased to confirm that the Government have engaged with the Charity Commission about the intervention powers, including the termination provisions in the Bill. There are currently no concerns about the interaction of these powers with the independence of charities. My noble friend Lady Berridge raised a very pertinent point again. I reassure her that her letter is in preparation as I stand here.
Through the schools White Paper, the Government set out their vision to deliver real action and level up education, supporting children, empowering teachers and school leaders and enabling parents. This Bill and these amendments help deliver that vision by underpinning it with legislation focused on improving the systems and standards of schools. I commend the amendments in my name and ask the noble Baroness, Lady Garden, not to move the amendments in the name of the noble Lord, Lord German.
Lord Addington (LD)
My Lords, it might be helpful to point out that my amendment was inspired by the Delegated Powers and Regulatory Reform Committee report, which talks about Clause 3 and its relevance.
Baroness Barran (Con)
My Lords, I shall now speak to the group of amendments relating to Clause 3, ahead of the question being put on whether Clause 3 stands part of the Bill.
First, I shall speak to Amendment 31. In response to the noble Lord, Lord Addington, I begin by reassuring the Committee again that I have fully heard the concerns that have been expressed about the Henry VIII power conferred on the Secretary of State by Clause 3, including those, importantly, from the Delegated Powers and Regulatory Reform Committee. We are carefully reflecting on what noble Lords have said today on the matter, as well as on the report from the committee. Any use of the power in Clause 3 would be exercised by the affirmative procedure and, as we will cover in relation to Amendment 34, the Government will consult on any new regulations.
Academy trusts are already subject to many of the same requirements as maintained schools, set out in numerous pieces of primary legislation. We want to consolidate these requirements on trusts as much as possible into the academy standards regulations. This will be a gradual process, and we want to work with trusts on the implementation of the standards at a pace which is right for them. As we move towards a school system in which all schools are academies within strong trusts, we want to ensure that the legal framework is fit for purpose, including by removing requirements should they prove excessively onerous or unnecessary. Clause 3 enables the Secretary of State to make these adjustments, subject to the affirmative procedure, and to be responsive to the changing needs of the system.
Viscount Eccles (Con)
I do not know whether it is the Committee’s problem, but it is my problem, as I do not understand how this enormous tidying-up process, if it should be called that, has any connection with improving the education of our children. We need some fundamental explanation as to what is perhaps marginally wrong, if I have heard right, and of why this has any real prospect of making any real improvement.
Baroness Barran (Con)
My noble friend is right—the thing we should principally be concerned about is improving the education of our children. I will be more than happy to meet my noble friend or any other noble Lord who wants to go through some more of the work that we are doing in relation to that, as was set out initially in the schools White Paper. As I said in the introduction to one of the groups on day one of Committee, this Bill needs to be seen in the context of the wider work that the department is doing and that Ministers are leading in relation to a commitment to improving outcomes for our children, which my noble friend absolutely rightly says should be pre-eminent.
Baroness Morris of Yardley (Lab)
The Minister said at the start of her summing up—and it was about the 20th time she had said it—that she had heard the concerns of Members, would reflect on them and would come back. To be honest, unless she gives us some indication as to when she is going to come back and what she is going to say, we are going to have this at every turn. The noble Viscount who has just spoken is right. My noble friend asked about this with the first amendment—and, since the statement at the end of the first day in Committee, I am sure that she has reflected on the views of the House. What conclusions did she come to? Is she able to tell us now? If not, when will she be able to tell us? Then we could perhaps use the time available to us much more constructively.
Baroness Barran (Con)
Tempting as it is to take power into my hands and give the noble Baroness the answer straightaway, she knows very well that this is something we need to agree more broadly within the department. As soon as that is done, of course I look forward—that is an understatement—to updating the House.
Baroness Wilcox of Newport (Lab)
Before the Minister sits down, I just ask a simple question: when?
Baroness Barran (Con)
I must explain to the Committee that I am not able to give a firm date on that today, but as soon as I am able to, I will update the House.
Baroness Blower (Lab)
In the debate last week, I was delighted to commend the wisdom and clarity of the noble Viscount, Lord Eccles. If it is impossible for the Minister to say anything more about how this process is going to proceed, she may find herself with requests for any number of meetings with the noble Viscount, but also with any number of people from these Benches, because how we are proceeding does not really seem to be comprehensible or explicable. If we are actually interested in improving things for children and young people through the education system, there is something different we should be doing.
Baroness Barran (Con)
I apologise to the noble Baroness. I do not think there is much I can add beyond what I have already said, which is to underline that as soon as I can clarify further, I will.
Turning to Amendment 33, I thank the right reverend Prelate the Bishop of Bristol for moving this amendment on behalf of the right reverend Prelate the Bishop of Durham. As she knows, the Government are a strong supporter of schools provided by the Church of England and by other religious bodies. We believe strongly that they bring great richness and diversity to our school system. That is why we have included measures in the Bill to ensure that statutory protections are in place for academy schools with a religious character, to ensure that their unique powers and freedoms are appropriately safeguarded. The power to designate a school with a religious character is already enshrined in existing legislation. I give a clear commitment that the Government will not use the powers in Clause 3 to affect the designation of academy schools with a religious character.
I appreciate that the right revered Prelate’s concern extends beyond the intentions and commitments of this Government. However, we are committed to ensuring that schools with a religious character remain an important element of our school system in the future. I offer my reassurance that we will give further consideration to ensuring that the powers in Clause 3 could not be used to undermine this.
On Amendment 34A, in the name of the noble Baroness, Lady Wilcox, I am willing to make a commitment on the Floor of the House to your Lordships that the Government will always undertake a full consultation with representatives from the sector prior to any regulations being laid which exercise the power in Clause 3. Those regulations will also be subject to the affirmative procedure.
On Amendment 35, in the names of the noble Baronesses, Lady Chapman and Lady Wilcox, by removing further education institutions from the scope of this power, we would lose the ability to make these adjustments in relation to 16 to 19 academies, with the possibility that we could introduce complexity to the regulatory framework rather than streamlining it. On that basis, I ask the noble Lord to withdraw his amendment and other noble Lords not to press theirs.
Lord Addington (LD)
My Lords, really, this is something of a hangover from day one—something I think the noble Baroness, understandably, would best like forgotten. I am still not clear why, when Clause 3 has been so heavily condemned, we are not saying, “Let’s get rid of it and try something else.” The undertaking the Minister has just given about consultation is welcome, but we should not need it, because we should know what we are getting into: it should have been discussed in Parliament, in detail, going through the full process. Also, an undertaking to consult comes back to the old point: I am sure this Minister will stand by it—she is an honourable person, as she has shown in her conduct over this—but we do not know who is coming next; we do not know who is giving the orders next.
Lord Adonis (Lab)
Since the noble Lord has raised the issue of Clause 3 standing part of the Bill, I wonder whether I might add a few remarks in the form of a question to the Minister. Unusually, the debates on this Bill in your Lordships’ House appear to be attracting the attention of the media, which very rarely happens, because people have suddenly noticed that these are extremely wide-ranging powers that have the potential to transform the whole educational landscape in England. One of the commentaries I read said that the person most frequently mentioned in the debates on this Bill so far has been Henry VIII. He has been much more frequently mentioned than the Secretary of State or any of us who are former Ministers, and so he appears to have been the principal author of this Bill. I think the remarks that the noble and learned Lord, Lord Judge, made last week are what the media are latching on to.
In trying to understand the Bill, I have a question for the Minister. My understanding of Clause 3(1) is that it would give the Government the power to override any existing admissions arrangements for an academy by ministerial direction. This is quite significant, because, as those of us who have laboured in this territory know, there are 101 varieties of non-selective admissions, and in respect of academies there are different forms of banding and inner and outer catchment areas—all these things—which are hugely important to the relationship between the school and its community which are usually brokered. I know that some people think that academies operate in a vacuum, but they do not; these arrangements have generally been very intensely negotiated, including with local authorities, to see that there is fairness between schools and so on.
My reading of this clause is that it will give the Government the power to override all the funding agreements in respect of admissions, in a way that may be very ill-thought through, just because a particular Minister or Secretary of State takes against one form of banding and wants a different form of non-selective admissions. This would completely subvert arrangements which, for very good reason, have been entered into between sponsors, multi-academy trusts and previous Ministers and would effectively override the whole contractual basis on which sponsors have taken responsibility for the management of schools. That is my reading of Clause 3(1). I know that there are ongoing discussions, which I have not been party to, but could the Minister confirm that this would give the Government the power to override any existing admissions arrangements set out in a funding agreement? If that is the case, I think Henry VIII has made a dramatic reappearance in the affairs of the Committee this afternoon.
Baroness Barran (Con)
I thank your Lordships. I will keep my remarks extremely brief, because we covered many of the points raised this afternoon when we debated this clause on the first day of Committee. If I may, I will write to the noble Lord on his question regarding admissions arrangements and set that out in detail. I ask my noble friend if he will consider withdrawing his remarks about the department taking revenge. It does not take revenge on anybody or anything. It works to serve Ministers to the best of their ability.
Baroness Barran (Con)
My Lords, I shall speak to Amendments 35B and 36, which amend Schedule 1. Schedule 1 extends certain provisions in maintained school legislation which currently apply to academies through funding agreements to academies directly.
I thank the noble Lord, Lord Knight of Weymouth, for Amendment 35B. He is seeking to require academies to employ qualified teachers and to be subject to the Secretary of State’s guidance on teacher pay and conditions that applies to maintained schools. However, the provisions in Schedule 1 that the amendment changes relate specifically to special schools and the removal of the power for the Secretary of State to prescribe that special academies employ qualified teachers. The amendment would not have the effect that the noble Lord is seeking to achieve.
However, it is clear that the intended purpose of this amendment and Amendment 36, which is about removing the exemption that academies have for teachers to have qualified teacher status, would provide for a restriction to a core tenet of the academy system, namely that, with the exception of special academies, all academy trusts have the freedom to employ those they believe are suitably qualified to teach in their academies and that all academy trusts can make decisions about pay and conditions of service in their academies.
The academy standards regulations will reflect existing requirements in the funding agreements, including those relating to enrolment in the Teachers’ Pension Scheme or the Local Government Pension Scheme. I have heard the fears expressed about a future Government using these regulations to undermine the freedoms that enable academy trusts to collaborate, innovate and organise themselves to deliver the best outcomes for their pupils, and I am carefully reflecting on those concerns.
On teacher pay and conditions, although all academy trusts have the freedom to set their own pay structure and conditions of service for teachers, we believe the vast majority follow some, if not all, of the guidance in the school teachers’ pay and conditions document. We believe it is right that academies continue to benefit from this freedom because it allows heads and trust leaders to have the flexibility to respond to their local context to support recruitment and retention of teachers. I am reminded of the phrase used by the noble Lord. I do not want to misquote him, but he spoke very powerfully on the first day of Committee about how important and attractive it was to trust our leaders, and that is exactly where these freedoms fall.
Academy trusts are also allowed the freedom to make their own decisions about who they believe is suitably qualified to teach pupils in their academies. However, most schools, including academies, understand the importance of well-trained teachers and choose to employ teachers who have undertaken initial teacher training and gained qualified teacher status. I agree very much with the sentiment expressed by my noble friend Lord Agnew in relation to the quality of the qualification as opposed to just the qualification in its own right. I am slightly baffled at your Lordships’ focus on this, as 96.9% of teachers in academy schools held QTS in November 2021, compared to 97.7% in maintained schools, so there is less than a percentage point difference between the two. The noble Baroness, Lady Morris, seemed to suggest that there are examples where it might be much higher. If that is the case, perhaps she would be very kind and share them with us, so that we can look into that.
The intention behind the amendment is to place additional requirements on academy trusts that would undermine the discretion and flexibility at the front line that fundamental academy freedoms give to heads and MAT leaders. That is not the intention of this Bill. On that basis, I would be grateful if the noble Lord would withdraw Amendment 35B and if the noble Baronesses would not move Amendment 36.
Lord Knight of Weymouth (Lab)
My Lords, I am grateful again for this half-hour debate and for the Minister’s reply. It is important that we have a vision for the whole system, now that we are moving to a single system, and perhaps this is something we will continue to reflect on.
I am grateful to the noble Lord, Lord Deben, for his comments. The core of the argument for having a single national pay and conditions arrangement for teaching relates to the difficulty of recruiting people into the profession. It is a critical profession for the future of our country and any society, and we must make sure that we recruit the finest people to be teachers—as one of their careers. These days, we are going to live longer and work longer. I am not saying that you necessarily have to do 40 or 50 years as a teacher, but would it not be great if, for one career, people wanted to be a teacher? It is easier to recruit people if they know that they have a predictable pay progression with a predictable, quality pension at the end of it, as part of their public service—as part of the motivation and the vocation around becoming a teacher.
I hear and respect very much what the noble Lords, Lord Agnew and Lord Nash, say about the output and the nature of the different routes into the profession. There is of course the assessment-only route. People who have been working for 20 years in the private sector or who are coming in from industry could perhaps have some brief training in some of the pedagogic or behaviour management elements that my noble friend on the Front Bench talked about and can then be assessed against the standards that are set around what we require from qualified teachers. They do not have to go through training; they can just be assessed against those standards. One of the things I pioneered when I was working at TES, with the TES Institute, was a route through the assessment-only process.
I am happy to withdraw this amendment. I hope this brief debate has given us cause and a pause to reflect on what kind of system we want for the teaching profession in the context of every school being an academy.
Baroness Chapman of Darlington (Lab)
The Government are in a bit of trouble here. I have not previously sat through a debate where there has been no support at all for what the Government are trying to do. I do not see how the Bill can leave this House intact. It is becoming quite urgent for the Minister to share with us the Government’s intentions around it. I appreciate that may not be possible today, but on Wednesday we should have some indication of how the Government intend to respond. This is getting repetitive and very frustrating. Deep concerns have come up through this discussion that demonstrate again the failure of the Government to engage with academies, particularly on their approach.
My noble friend Lord Knight makes very sensible suggestions about the appointment of trustees, which highlights the issues around remuneration. We get the impression that the Government have not thought this through sufficiently. He rightly highlights the dangers of a gang of usual suspects taking roles—although he did not rule out being one himself. This makes us all realise, the Bill being as it is, that none of us has the first idea where the Government will take us. This is not a sustainable position for the Government to put the Minister in day after day as we go through Committee.
The Bill is muddled and rushed and has not benefited from the regulatory review. We do not understand the haste. There is no clarity about how all this will work in practice. The noble Baroness, Lady Brinton, summed it up really well. She said there was no strategic framework and no detail, and that it does not reflect the White Paper. I am afraid that is where we find ourselves. Several noble Lords have proposed a delay. It would appear a justifiable proposal at this stage, given everything we have heard. It would be in the Government’s interest—perhaps not today but on Wednesday, before we go much further—if we could have some indication about what they are going to do about the fact that they clearly will not have sufficient support to get the Bill through as drafted.
Baroness Barran (Con)
I start by acknowledging the noble Baroness’s last comments. I will endeavour to come back on the next day of Committee with more clarity on the points she raises.
I thank my noble friends Lord Agnew, Lord Baker and Lord Nash, who have so much experience in this area, for discussing their concerns in respect of Clauses 5 to 18 with me ahead of today’s Committee. As we know, the vast majority of academy trusts are well managed and meeting their obligations, but it is right that the Secretary of State should be able to step in where trusts fail to safeguard children’s education and public money.
These intervention powers form part of a toolbox of measures enabling the Secretary of State to intervene in trusts in a proportionate way. The powers enable the department to tackle failure at the multi-academy trust level. In response to my noble friends and the noble Lords, Lord Knight and Lord Addington, and the noble Baronesses, Lady Brinton and Lady Chapman, I shall attempt to explain why these powers are necessary, offer some assurance as to how they will be used proportionately, and summarise our plans for building confidence in the department’s decision-making processes.
The powers are necessary for two main reasons. First, they will provide a strong platform on which to build a fully trust-led system. Under the current framework the Secretary of State’s intervention powers are set out in individual funding agreements, as we have heard. These powers can vary, depending on when the agreement was signed. In the case of a multi-academy trust, there may be several funding agreements with different termination provisions. We believe it is the right time to create a more coherent trust framework under which the Secretary of State’s powers can be applied consistently and transparently.
Secondly, the powers will allow the Secretary of State to intervene, where necessary, in a more proportionate way. The current tools are limited and blunt, relying heavily on the power to terminate the funding agreement. For example, Clause 5 will give the Secretary of State a targeted power to act where a trust is failing to fulfil a specific legal duty. This could include, for example, not complying with the new attendance legislation under this Bill or a misuse of funding.
My noble friends have suggested that the Secretary of State could enforce such requirements under common law by taking legal action against the trust for breach of contract. I fear that such an approach to enforcement would be costly and burdensome for both the department and trusts. Instead, the Bill provides for a straightforward remedy, while allowing for resolution through legal action as a last resort.
Baroness Morris of Yardley (Lab)
May I seek some clarification on that point? Will the payment of trustees and the interim executive board be the same for maintained schools? There is a parallel situation there, where a governing body of a maintained school is not strong and an interim executive board is put in place. Are the Government proposing that they be paid as well in the intervening period?
Baroness Barran (Con)
I will come back to the noble Baroness on that point. I do not have the answers to hand but I will write to her.
We believe that there will be circumstances where it is right to remunerate trustees who have the particular skills and experience required to tackle the most serious failings in governance and management. These powers offer an alternative to terminating the funding agreement, which could be costly and disruptive to children’s education.
We would expect any additional directors and members of interim trust boards to be drawn from our strongest trusts, in line with our aspiration for a trust-led system. If noble Lords have colleagues who are trustees, or are trustees themselves and wish to discuss this further, I am happy to undertake to meet and explore this point.
My noble friends expressed concerns that these powers could be used in a heavy-handed way, such as terminating a trust’s master funding agreement on the basis of a single breach. As I have explained, the intention behind these measures is to create a more nuanced framework for intervention which avoids resorting to the threat of termination, while ensuring that weaknesses can be addressed. Any Secretary of State is bound by common-law requirements of proportionality. This means that they would terminate a funding agreement only on the basis of a material breach. Moreover, except in very limited circumstances—for example, where a trust is insolvent—the Secretary of State may terminate a funding agreement only after exhausting other options.
In general, the Bill provides for termination only where a trust has not addressed concerns raised through an earlier intervention, whether a compliance direction, a notice to improve or a termination warning notice. I agree that there should be proper scrutiny of how the Secretary of State, through regional directors, exercises any powers of intervention in academies and trusts. The Government’s recent schools White Paper announced a plan for a review of regulation. I assure the Committee and my noble friend behind me that, as part of that review, we will—
Baroness Chapman of Darlington (Lab)
Given that the regulatory review seems to be so significant in the Government’s considerations and has come up many times, and that we are discussing pausing the Bill—I know the Minister has not yet engaged directly with that—I wonder whether we could have some idea of the timescale on the regulatory review. Should we wish to suggest a pause, we could make sure that it was for sufficient time, but not too much time, to allow us to benefit from the findings of that review.
Baroness Barran (Con)
We plan for the review to be launched in the coming weeks. I cannot give the noble Baroness an exact date, but I think I am allowed to say “shortly”. I have probably said more than I am allowed to.
I will go back, because this is important. The noble Baroness is right to raise the regulatory review; we see it as very important. As part of that, we will look at how we provide for the scrutiny of how these powers are exercised. Critically, we will do that in a way that wins the confidence of the sector.
I have reflected on my noble friends’ concerns, but I believe that, taken together, these clauses create a sound framework for robust but proportionate intervention as we move to a fully trust-led system.
Amendments 39A and 39B in the name of the noble Lord, Lord Knight of Weymouth, envisage a new role for Ofsted in inspecting multi-academy trusts, and make the decision to issue a compliance direction and a notice to improve contingent on the outcome of such an inspection. Currently, the department relies on a range of evidence from a variety of sources to build up a joined-up picture of each multi-academy trust, to inform decisions about intervention. This includes evidence on finance and governance, as well as Ofsted’s school inspection judgments on educational performance.
Through the regulatory review, the department will consider the evolving role of inspection in a fully trust-led system. This will include consideration of how inspection of multi-academy trusts would be co-ordinated with our wider regulatory arrangements, as well as how it would interact with school-level inspection. I hope the noble Lord will agree that it is important that the review runs its course before we make any decisions in this area. He also asked a number of quite specific questions. If I may, I will write in response.
I commend Clauses 5 to 18 standing part of the Bill. I also ask the noble Lord, Lord Knight, to withdraw his amendment.
Lord Lucas (Con)
My Lords, the noble Lord, Lord Knight, is right about getting Ofsted into multi-academy trusts. It would make a great difference to how parents are able to interact with the eventual system. Parents need the level of information and reassurance that will come from an Ofsted report, and I hope it would be done in a way that, as others have suggested, is very much focused on the educational aspects, which is where Ofsted’s expertise lies.
Baroness Barran
“(3A) Where the Secretary of State proposes to give an interim trustee notice to the proprietor of one or more Academy schools with a religious character, the Secretary of State must first consult the relevant religious body for each Academy school with a religious character in the proprietor’s care.”Member’s explanatory statement
This amendment requires the Secretary of State, before giving an interim trustee notice to the proprietor of an Academy school with a religious character, to consult the relevant religious body for the school.