Academies Bill [HL]

Debate between Baroness Morgan of Drefelin and Lord Phillips of Sudbury

Tuesday 13th July 2010 Lords Chamber

[Lord Phillips of Sudbury]

I apologise for interrupting the last gasp of the Minister’s excellent reply, but would it be fair to say that the obligation of the Secretary of State on the impact consideration is, to a significant degree, a different undertaking from the consultation to be undertaken by the promoters and that the Secretary of State will have to form his or her own judgment as to impact?

[Baroness Morgan of Drefelin]

Before the Minister responds to that point, will he also consider the points made by my noble friend Lord Knight about the impact on schools in an area? We talked about funding at Second Reading, in Committee and on Report. It is a theme that has come back again and again and it is an important point. When you are looking at the impact of a new school on an educational community, funding is a key question.

Academies Bill [HL]

Debate between Baroness Morgan of Drefelin and Lord Phillips of Sudbury

Wednesday 7th July 2010 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, it is very encouraging to see my noble friend the Minister bring forward his Amendment 30, but I join others in hoping that he may bring forward an amended version of it at the final stage of the Bill. None of these amendments, except Amendment 26—that may be inadvertent—takes account of new academies: the so-called free academy schools. All these amendments speak of the conversion of existing schools into academies.

[Baroness Morgan of Drefelin]

As I understand it, throughout the passage of the Bill, there has been no such thing as a free school; free schools are academies. I am sure that will help the noble Lord.

[Lord Phillips of Sudbury]

I am grateful for the intervention but I am not sure that it does. I was merely repeating the parlance used by the Government when they talk of academy schools that are not conversions as free schools. I am merely making the point that every one of these amendments is drafted on the basis of an existing maintained school converting to an academy: except Amendment 26, which would cover new free academies, as they are called, as well as existing secondary schools. It is blazingly obvious that our consultation provisions must apply to these new academies. In fact, the need for consultation where a brand new academy springs up in an area is even more acute than when an existing school converts into an academy. I hope that the Minister will say in response to this mini debate that he will bring forward an amendment at Third Reading that includes the new academies.

--- Later in debate ---

[Lord Phillips of Sudbury]

My Lords, I shall speak to Amendments 40A and 40B and build to some extent on what the noble Lord has just said. As a long in the tooth charity lawyer, I have come to believe that the law of charity is best regulated by the Charity Commission. It may not be a perfect regulatory animal but it is, by a measure that you cannot count, more experienced in regulating charities than any of the other principal regulators. It is worth adding that charity law is one of the most difficult branches of law, as it is both a combination of common law and statute law and calls for more judgment in its application than perhaps any other branch of law. It is not textbook law.

I have heard what my noble friend the Minister has said on past occasions and I am content, despite misgivings, to go along with Clause 8, but only on condition that, if the principal regulator proves inadequate to the difficult task of regulating not only the large number of academies to come but the 200-plus academies that already exist, the Charity Commission should then be able to intervene and exercise powers.

For noble Lords who are not aware of it, I should say that the Attorney-General has jurisdiction with regard to all charities. The Minister might say that that should be enough, but the Attorney-General will not intervene other than in quite exceptional circumstances and, frankly, he is not supposed to be an alias principal regulator. The problem is that the powers in Sections 8 and 18 of the Charities Act 1993 were given to the Charity Commission to ensure that charities are charitable—and there is no more precious name or reputation in this country, I suggest, than that of charity—and can be exercised only by the Charity Commission. They cannot be exercised by a principal regulator unless that regulator asks the Charity Commission to exercise those powers on its behalf.

My Amendment 40B says that when the Charity Commission has concerns over the regulation of a principal regulator and what it is doing, or more likely not doing—in this case it will deal with the Young People's Learning Agency, because my noble friend has indicated that that is to be the regulator of academy schools—the commission will consult the principal regulator, the YPLA. If, having consulted the YPLA, it remains unhappy at what the YPLA proposes to do or not to do, having given notice to the YPLA it can institute an inquiry under Section 8 of the 1993 Act that will lead to the much wider powers that it will have under Section 18 of that Act. This is a power, a provision, that I would not expect to be exercised at all, but it is well worth having in the Bill because it may prove to be just the sort of spur that may be needed—I hope it will not—in order for the YPLA to do the job properly. That longstop—the prospect of being exposed to public ridicule and contempt by the Charity Commission having to intervene under the provisions of this subsection—would ensure, as far as anything could, that the YPLA did the job properly.

Before finishing, I would like to say a word about the YPLA. It has been in existence for just three months. Noble Lords may wonder, as I do, whether such a new organisation can possibly be in a position almost immediately—we are talking about the autumn—to undertake this huge and difficult regulatory role. People capable of exercising these powers in a knowledgeable and practical way are few and far between, and it will not be easy to put in place the team necessary to do this job properly. It must be done properly because these academy schools are hugely important in public interest terms. I am anxious that it will not be possible for them to assemble the necessary expertise to do that job, which makes my amendment all the more important.

I am also concerned, to be honest, about the potential conflict of interest that the YPLA will have. Its principal responsibilities, as made clear by the former Minister, Ed Balls, are, first, to support local authorities in commissioning suitable education and training for 16 to 19 year-olds; secondly, to fund academies; and, thirdly, to provide financial support to young learners— none of which is anything to do with the difficult regulatory function that is to be cast upon it under the Bill. I am sorry to have had to explain all that at length, but it is not easy to get across the background to and the need for this amendment.

Finally, and much more simply, my Amendment 40A adds to Clause 8 the charitable incorporated organisation alongside companies limited by guarantee as the alternative vehicle for an academy school. This charitable incorporated organisation was brought into existence by the Charities Act 2006. It is a specially tailor-made corporate animal for charities and is therefore infinitely simpler than the company limited by guarantee, which is subject to the vast forest of company law. I have no doubt that when the regulations come into effect, which will in effect give birth to these charitable incorporated organisations, all the academy schools will want to convert into that new charitable corporate vehicle. It would be remiss if we were not to include that now alongside companies limited by guarantee. I hope that both these amendments will appeal to your Lordships and indeed to my noble friend the Minister.

[Baroness Morgan of Drefelin]

My Lords, I have listened to the debate on Report with even more concern than I did in Committee. I was hoping that, following meetings between noble Lords and the Minister, there would be more on offer to meet the concerns raised by the noble Lords opposite.

When thinking about this group of amendments, I had similar concerns to those of the noble Lords, Lord Hodgson and Lord Phillips. I was particularly concerned about the role of the YPLA as a regulator when there are conflicts of interest and about the YPLA’s capacity to deal with this. Will the Minister tell us how many staff with charity law experience the association has in place who are ready for this retrospective legislation that will put it in charge of regulating the academies that are currently charities, if that is what is going to happen? I am very concerned about Clause 8.

This reminds me of a storyline from “Yes Minister”. When a new Government come in, officials dust down an old policy that they were not able to convince the previous Government to pursue and suddenly it finds its way into legislation. That is what appears to have happened here. When we were in government, this proposal was put to us. We listened to the concerns voiced by many and to arguments similar to those put by the noble Lord, Lord Hodgson, and we did not pursue this approach.

In Committee, the noble Lord, Lord Phillips, described the clause as “a dog’s dinner” and made clear his view that the regulator should be mentioned in the Bill. The noble Lord, Lord Hodgson, made the important point that the Bill would damage the “delicate balance” between,

“the many strongly held views about the charitable sector”.—[Official Report, 28/6/10; col. 1632.]

He said that this would particularly be the case in the area of education, which has been highly controversial.

The Government should tread carefully in this area. I offer the Minister some advice: it would be sensible to listen to the advice that he is being given at this Report stage and to think further about how the issue can be managed in the Bill. I do not think that it would be a good thing to go forward with this clause, as it would unsettle the settlement achieved in the Charities Act 2006, which was a well deliberated piece of legislation about a hugely controversial area. I hope that the Minister will think further about this.

Academies Bill [HL]

Debate between Baroness Morgan of Drefelin and Lord Phillips of Sudbury

Monday 28th June 2010 Lords Chamber

[Baroness Morgan of Drefelin]

My Lords, the noble Lord is referring to the 10 per cent based on aptitude, which is a different paradigm—I am not sure whether that is the right word. These are probing amendments and I want to hear what the coalition Government’s intentions are on selection. I am sure that we will all be interested to know.

As with the discussion on the admissions code earlier in Committee, Amendments 130 and 183 will reassure those who are concerned that schools could convert under existing admissions procedures—which may erode over time—with no statutory safeguard against it. Many people outside the Chamber are asking these questions. The amendments would ensure that, in future, no non-selective school could use academy status to become selective.

Indeed, others have expressed this concern from another perspective. The Guardian newspaper reported the views of the National Grammar Schools Association. It stated in regard to academies:

“There may be other covert dangers and, until everything is made clear in the area of legislation and elsewhere, we strongly recommend extreme caution. If necessary, please seek advice from the NGSA before making decisions that may later threaten your school”.

The head of the NGSA said he was concerned that if a grammar school became an academy, it could then be run by a small group of people who might decide to change the admissions procedure. The article continued:

“‘What is the protection for the parents?’, he asked. ‘Does there have to be a ballot? Does it become an all-ability intake?’”

The National Grammar Schools Association is unclear about the coalition Government’s intentions. I should be extremely grateful if the Minister could set out, with great clarity, their vision for the future of selection in academies.

[Lord Phillips of Sudbury]

My Lords, I shall speak to Amendments 43 and 46. I can address them briefly because I agree overwhelmingly with what the noble Baroness, Lady Morgan of Drefelin, has said. It is recognised that in part of the coalition at least—I hope in the whole of the coalition—there is a quiet passion to ensure that the extension of the academy principle, which is strongly supported all around the House, should not inadvertently become a cause of further problems for the least privileged part of our secondary education system. As the noble Baroness said, all the amendments, including mine, are designed to obtain from the Minister a “battened down” statement, if you like, that will allay these anxieties.

On Amendment 43, and wearing my lawyer’s hat, a characteristic in subsection (1)(6)(c) is that,

“the school provides education for pupils of different abilities”.

A lawyer could make hay with “different abilities”. It could be that a school would satisfy this test if in future it was going to select the top 10 per cent and the second top 10 per cent. They would be of “different abilities”. It could pass the test if it were to select the top 5 per cent and those with tap-dancing abilities. Those would be “different abilities”. I caricature my point to make it, but I look forward to hearing what the Minister has to say.

Academies Bill [HL]

Debate between Baroness Morgan of Drefelin and Lord Phillips of Sudbury

Monday 21st June 2010 Lords Chamber

[Baroness Morgan of Drefelin]

We have had a very helpful and full debate, and I thank the Minister for replying so comprehensively and in such a helpful way. To return to my earlier remarks, and picking up on the point that my noble friend Lord Adonis made, I think that it would be helpful—now that we know that free schools will be academies, and being in favour of reducing the alphabetti spaghetti, or soup, as the House was earlier—if the proposal forms for the free schools were called proposal forms for academies. We should get that clarity and consistency, so that those outside, who have not had the benefit of listening to the deliberations that we have had, can be clear about the relationship between new schools, free schools and academies. That would be very helpful.

[Lord Phillips of Sudbury]

I hesitate to prolong this debate, but after all that has been said on this group of amendments, is it not sensible to have the phrase “free school” somewhere reflected in the Bill? The Government themselves refer to these new academy schools as “free schools”. I should have thought that, in trying to make the legislation as helpful as possible to the poor devils who have to implement it hereafter, that would be a useful thing for the Government to contemplate—and I should be grateful if he would.

[Baroness Morgan of Drefelin]

I beg leave to withdraw the amendment.