Academies Bill [HL]

Baroness Sharp of Guildford Excerpts

Monday 28th June 2010 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I, too, ask the Minister to give this important matter further consideration. One of the great strengths of our education system over the past few years has been the involvement of parents in schools through PTAs, voluntary work in schools or, indeed, helping in classrooms. In my experience and that of many others, strong parent governors can enhance the quality of governance within schools.

The noble Baroness, Lady Williams, made a strong point about why the circumstances that applied to the original academies and those that apply to the situation before us now, whereby many schools are projected to become academies, are quite different. I also remind the Minister that we are talking about academies that are to be established without formal consultation and without the involvement of the local authority. If we take that together with the fact that academies at the very least will not be encouraged to have a large number of parent governors and the fact that decisions by Ministers, who are taking a huge amount of power to themselves, will not be subject to parliamentary scrutiny, then the situation regarding parent governors begins to fit a certain picture.

My concern is that we are seeing the development of almost private institutions without sufficient scrutiny at either local or national level. One way to counterbalance that would be to come back to the Bill, either tonight or at a later stage, with a much greater reassurance about the involvement of parent governors on these governing bodies. I believe that the same argument applies to staff members. My experience is that by and large they add value to the institution and enhance the confidence of staff in the governing body. It is important that there continue to be links between the local authority and individual schools. Again, in my experience, the local authority-appointed governors often bring a breadth of experience to the governing body. It would be very disappointing if that were lost.

[Baroness Sharp of Guildford]

My Lords, perhaps I may add one small thought to the debate. As I understand it, the parent governor will be not elected but appointed by the board of trustees for the academy. I think that that is a retrograde step. It is important that we have parent governors but I think that they should be elected from among the parents rather than appointed.

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[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

If either Amendment 88 or Amendment 89 is agreed to, I cannot call Amendments 90 and 92 for the reason of pre-emption.

[Baroness Sharp of Guildford]

My Lords, I will speak to Amendments 108 and 178 in my name and that of my noble friends Lady Walmsley and Lady Garden. I need not detain the Committee long at this time of night.

Amendment 108 is slightly different in that it concerns the application to convert to academy status, and is very much probing. At the moment, there is no provision in the Bill to withdraw an application once it has been made. Will the Secretary of State allow a maintained school to withdraw an application, and what will be the latest time by which a school can withdraw it? Presumably there will be some point of no return prior to the conversion date or the date on which the academy order is issued, which is the date that allows the school to convert to an academy and therefore to negotiate a funding agreement.

Amendment 178 proposes one of a permutation of clauses—or, rather, it proposes the same clause with a permutation of times in it—and proposes that an academy, once established as an academy, can revert to becoming a maintained school. Its purpose is really to provide a mechanism for the school to revert to maintained status.

It might be of interest to the Committee if I note that the seven-year rule in the Bill came from the Education Reform Act 1988 of the noble Lord, Lord Baker. The rule was originally five years, and Lady Blatch, whom many people in this House will remember, moved as a Back-Bencher that this should be changed to seven years on the grounds that any young person attending what was then a city technology college should be afforded the opportunity to complete a full seven years—the period of secondary education up to 18 years of age. The assumption was repeated by the Minister of the time, the noble Earl, Lord Arran, and it might be worth asking whether it continues to be the assumption that academies will provide sixth-form education. Certainly our primary schools and many of our special schools will not necessarily provide sixth-form education.

[Baroness Howe of Idlicote]

My Lords, my Amendment 179 is also in this group of amendments. As the noble Baroness, Lady Sharp, has mentioned, probably a number of us were sent them and we have used them in differing ways, but they are in fact extremely similar. My proposal is very much, as we argued in the first place, that if you have to go through a series of consultations before you take the specific step of applying properly to become an academy, the whole procedure of consulting the parents, the staff and everyone—the kitchen sink, as it were—to become an academy is the same as the procedure before you decide to come out of the process. All of that indicates the concern about the whole process. There are without doubt, as originally set out, a number of reasons why a school, having suddenly leapt to the idea that becoming an academy is definitely the way forward, might regret converting to one, so it should have the option of returning to maintained status if that is best for the education of its children.

I therefore join other noble Lords in what they have said about these amendments, and I hope the Minister will be able to satisfy us on these points.

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[Baroness Morgan of Drefelin]

Again, this is about teasing out more from the coalition Government about the practicality of how applications should work and the kind of criteria that the Secretary of State will be using to make decisions about whether a school can become an academy. I am sure that these are matters that have all been thought through.

I would be interested to know whether the Government have considered putting much more detail in the Bill. When we had an academies programme that started off with numbers in the tens, the academy funding agreement and the intensive coaching approach that the Department for Children, Schools and Families adopted was very appropriate. Then we moved on to academies in their hundreds and the YPLA was established, and so on from there. We increased transparency around the standard funding agreements and so on.

Is the Minister considering publishing the criteria for decisions around academy applications? Is he also considering putting more in the Bill as we start to think about a whole system that could be made up of academies rather than a small number focusing on school improvement?

[Baroness Sharp of Guildford]

My Lords, I shall speak to Amendments 112, 118, 123, 126 and 187, in my name and those of my noble friends Lady Walmsley and Lady Garden. The key amendment among them is Amendment 123, which has two purposes. In the first place, it asks the Secretary of State to state the criteria for approving an academy order. This is both important and urgent. It is important because, as my noble friend the Minister has made clear, there remains a two-stage process for applications for state-maintained schools converting to academy status. First, they have to apply under the conditions set out in Clause 3 and, if approved, the Secretary of State, under Clause 4, issues an academy order. Once an academy order is issued, the school then has to begin negotiating an academy agreement or a funding agreement with the Secretary of State.

As I mentioned at Second Reading, the impact assessment suggests that only 200 schools a year will achieve academy status during the next three or four years. My noble friend the Minister made it clear that this was merely a guesstimate based on past experience. He has also told us that more than 1,700 schools, many of them judged outstanding by Ofsted, have expressed an interest in becoming academies. Even if you halve that, so that the number of applications received is 850, you have to ask whether all those which receive academy orders go on to negotiate academy agreements. The Secretary of State has indicated that all those judged outstanding by Ofsted will be able to proceed unless they are carrying a significant deficit on funding.

If this is so, the department will have to process many more than 200 schools, with not insignificant costs, not least because each school will receive a welcome present of some £25,000. Will all schools applying which have been judged outstanding automatically—unless they carry a large deficit—receive an academy order allowing them to proceed to negotiating a funding agreement? If not, what other criteria will be used to select those that are allowed to proceed? What about the schools judged good or satisfactory by Ofsted? They are also being encouraged to apply, albeit to a slower timetable. By what criteria will they be judged? Neither the Explanatory Notes nor the guidance to schools wishing to apply makes clear what criteria will be used to judge applicants. Amendment 123 would make the criteria public so that schools thinking of applying might be able to judge whether it is worth their while doing so.

The second aspect of the amendment is that it seeks to make it clear, where a school is under notice from its local authority under Section 30 of the School Standards and Framework Act 1998 or Sections 15 to 17 of the Education and Inspections Act 1996, that the local authority will cease to maintain the school. When GM status was introduced in the early 1990s, many schools sought it as a way of avoiding closure. How far is this likely to be considered by this Government? We face over the short term a very considerable drop in numbers at some secondary schools, especially those that deal just with the 11-to-16 age group, and closures and amalgamations are still very much on the cards. How far will they be allowed to use an application for academy status as an escape route from reorganisation?

Amendment 112 asks that, where a school is being converted to an academy because it is failing and not serving its community as well as it might, the decision is taken in conjunction with the governing body, and that, just as with other schools, the application is made by the governing body and not imposed on it.

Amendment 118 picks up the second issue raised in Amendment 123. This amendment was proposed to us by my honourable friend the Member for Bath, Mr Don Foster, and relates to school reorganisations. There were some instances where plans for a sixth-form reorganisation had been foiled by a key player opting out to become a grant-maintained school. The suggestion is that before a school opts out in this way an independent view should be sought on how it affects the provision of education within the community as a whole. Who better to provide such an independent view than the schools adjudicator, who has already had to look at the contentious admissions procedures? The proposal, therefore, is that when the conversion to an academy is contentious in a local community because of reorganisations, the schools adjudicator should be asked to look at the situation and the Secretary of State should have regard to his or her advice—not necessarily follow it, but have regard to it.

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[Lord Hill of Oareford]

My Lords, this group of amendments deals with academy orders which enable the conversion of a maintained school into an academy. Amendments 105, 115 and 123 seek to place in regulations the process of applying for an academy order and to require the publishing of the criteria that the Secretary of State will take into account when approving academy order applications and entering into academy arrangements. As your Lordships might expect by now, we are unconvinced that it is necessary to prescribe in regulations the application process for an academy order, as this is an entirely administrative process. The Government have made it clear that they will apply a rigorous fit-and-proper-person test in approving any sponsors of an academy or promoter of a free school.

In response to one question raised by my noble friend Lady Sharp, I can confirm that the Secretary of State will publish on the department’s website criteria for deciding applications from schools which are not outstanding. I agree that it is important that people know where they stand. We will make sure that those are available when we have done some more work on that.

[Baroness Sharp of Guildford]

Can the Minister clarify whether that means that every school that is outstanding which applies will automatically get an academy order, unless it has a deficit of over £100,000?

[Lord Hill of Oareford]

No, my Lords; I was coming to that. There are some exceptional circumstances where that would not necessarily happen. There may, for instance, be cases where further information or action is required, including where a school is subject to existing reorganisation proposals—such as those referred to in Amendment 123—and where, as my noble friend has said, the school has a deficit or its performance has changed significantly. The Secretary of State has that power and would want to review each case on its merits. There will need to be flexibility in the Secretary of State’s consideration of these factors to make sure that he can make the most appropriate decision in each individual case. Information on those exceptional circumstances is, I believe, available on the department’s website.

In a similar vein, Amendment 126 would require the Secretary of State to make an order through secondary legislation specifying the mandatory contents of an academy order. While each order will inevitably contain certain standard elements, each will be different and specific to each school depending on the circumstances of each case. I think that we touched on this briefly last week. The parliamentary Delegated Powers Committee report on this Bill, dated 17 June, concluded that it would not be necessary for Parliament to scrutinise academy orders, while the expectation is that the academy orders will be brief. Therefore, it is not our view that we need to set out in an order what those orders will contain.

Amendment 118 seeks to require the Secretary of State to seek the advice of the schools adjudicator before agreeing the conversion of a school from maintained to academy status. The local authority normally would decide proposals for changes to existing maintained school provision, including closures, alterations and new schools. Where the local authority itself is the proposer of a new school, the schools adjudicator may be called upon to decide the competition. The decision on academies has, however, always been the Secretary of State’s. Given that the process for converting to academy status will not result in a net change in provision available to parents and pupils in the area, we do not believe that involving the schools adjudicator would be necessary. It might, indeed, introduce another unnecessary layer of bureaucracy.

On the point raised by my noble friend Lady Sharp on Amendment 187, the Secretary of State does not intend to delegate to the Young People’s Learning Agency any decisions about, or the making of, academy orders. I can confirm that he has no intention of delegating this function, which goes hand in hand with the decision to enter into academy arrangements themselves and which he cannot delegate to the YPLA. Academy orders are made in respect of maintained schools; therefore it is not appropriate to delegate it to the YPLA, which is responsible for certain roles—funding, challenging and supporting academies—once they are up and running, but not before.

Finally, Amendment 112 would remove the power of the Secretary of State to make an academy order for a school that is eligible for intervention. Generally speaking, schools are eligible for intervention where standards are too low or there are concerns about performance standards. It is crucial that schools that are failing their pupils can be given the opportunity to convert to academy status and to do so quickly to improve their pupils’ chances. There is evidence that schools obtaining academy status can make improvements to raise standards for all their pupils. It is right to make sure that those schools have that opportunity, too. Removing that option would not be in the best interests of pupils. I hope this has provided some more information and factual answers on several of the points that have been raised. With that, I hope that the noble Baroness will withdraw her amendment.

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Moved by

[Baroness Sharp of Guildford]

160: Clause 7, page 6, line 11, at end insert—
“( ) The Secretary of State before making a property transfer scheme shall consult with—
(a) the local authority;(b) the current owner, if not the local authority; and(c) any other such persons as the Secretary of State considers appropriate.”

[Baroness Sharp of Guildford]

My Lords, the amendment is in my name and that of my noble friends Lady Walmsley and Lady Garden. Clause 7 applies not to land but to items such as electronic hardware and software, furniture and cleaning or catering contracts. It permits the Secretary of State to make a property transfer scheme, which, in effect, transfers to the academy various property and contractual rights and liabilities that previously belonged to the local authority or, through it, the maintained school that the academy is replacing. As it stands, the clause makes no mention of any consultation with the owner of the property—whether it is the local authority or otherwise—or with people such as the catering contractors who might be affected by such a transfer. It seems natural justice that they should be consulted and the purpose of the amendment is to ensure that they are consulted. Will my noble friend also explain what subsection (6)(a) means? What sort of property rights,

“could not otherwise be transferred”?

I beg to move.

[The Lord Bishop of Exeter]

My Lords, I have been asked to speak to Amendments 171 to 174 in the name of my noble and right reverend friend the Bishop of Lincoln, who cannot be in his place today due to commitments in his diocese—although I dare say that his commitments will be over rather sooner than yours and mine.

I should like to speak to these amendments as a group because they relate to complications that could arise from the Secretary of State’s powers to compulsorily purchase the site of an existing church school as part of the academy formation process. The amendments are technical and are being put forward because of the extraordinary complications in respect of the ownership provisions of many voluntary schools sites—again, predominantly those held in trust by Church of England bodies.

As I am sure all noble Lords will know, the School Sites Acts of Queen Victoria are still in force and contain a technicality called a “reverter”. It is our view that reverters will be likely to apply to at least some sites dealt with under the provisions of this Bill and that in consequence the rights of the heirs of original donors will come into force if and when the school site is purchased by the state. Thus, the closure of a school in order for it to reopen as an academy may trigger reverter conditions, enabling the trustees to reclaim the land. Likewise, the original donation of the land in trust probably had conditions attached such as its use for church schooling only. In this respect, we do not think that the Government have taken into account the effects of the Schools Sites Act 1841 and of the Reverter of Sites Act 1987. Many of our school sites can be regarded as being part of the church’s historical assets and every effort needs to be made through discussion with the diocese and trustees to ensure that the transition is both smooth and a legitimate handing on of the asset in trust.

These are therefore probing amendments through which I hope to draw out the Minister to clarify the Government’s thinking on this arcane subject. They seek to protect trustees and heirs from the complications that might ensue and to protect the Government from a nasty and expensive legal trap if the issue is not clarified and addressed now.

[The Lord Bishop of Exeter]

I thank the Minister for those assurances and will not press the amendments this evening.

[Baroness Sharp of Guildford]

I am grateful to the Minister and am glad that he is going to think about this. It seems to be natural justice that there should be some consultation with the owners of the property concerned. In the light of that, I beg leave to withdraw the amendment.

Amendment 160 withdrawn.

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Moved by

[Baroness Sharp of Guildford]

185A: Schedule 2, page 17, line 26, at end insert—
“( ) In section 133(6) (requirement to be qualified) omit the “or” after paragraph (a) and at the end of paragraph (b) insert “, or (c) an Academy”.
( ) In section 212(1) (general interpretation) insert at the appropriate place the following definition—
““Academy” means an Academy within the meaning of the Academies Act 2010;”.”

[Baroness Sharp of Guildford]

My Lords, I tabled this amendment to ensure that academy support staff are not excluded from the School Support Staff Negotiating Body, which was set up under the Apprenticeships, Skills, Children and Learning Act 2009. The establishment of this negotiating body was supported on all sides of the House. There are concerns that, because academies have freedom to negotiate separate pay and conditions, their staff will be excluded from the negotiating body.

Many people will recognise that changes in educational practice over the past 10 years mean that support staff now play a very important part in schools. Over the years, we have treated them extremely badly. The negotiating body is the first move on the part of any Government in creating a proper career structure and providing proper negotiating machinery for support staff, who have been paid extremely badly. We are seeking assurances from the Government that academy staff can be included within this negotiating body. I beg to move.

[Baroness Morgan of Drefelin]

My Lords, there are over 200,000 more support staff in our schools thanks to the investment put into school improvement under the previous Government. More than 123,000 of these staff are classroom teaching assistants, who support teachers in identifying and helping children who need extra support.

The previous Government established the School Support Staff Negotiating Body to ensure fair pay and conditions for hundreds of thousands of people whose jobs on the front line help to give every child the best start in life. This was part of a partnership that we built between government, employers, unions and staff, known as the Social Partnership.

A forum for real dialogue between government, the trade unions and school staff is something which I consider to be extremely important and which I am sure all of us in this Chamber can look back on with pride. Whatever else the coalition Government may disagree with us about, I hope that—in going forward with the previous Government’s approach—they do not forget that it is by working with, and not against, staff that you can drive change and raise standards in our schools. I hope that we can hear some very constructive language and views from the government Benches.

It is true that under the previous Government academies were not covered by the national pay and conditions structures, although they were invited to be involved in the school support staff negotiation process. As I understand it, the amendments in this group are not intended to represent reneging on that position. If academies are to become the norm for secondary schools in this country—if the majority of schools adopt academy status, as I understand is the Government’s view—these amendments are looking for an understanding that, rather than being a tool for driving improvement in a number of areas, it is right and proper that there should be a framework for collective bargaining, particularly for these important staff members who have made such a difference in our schools.

Giving a few schools in challenging areas the freedom to vary the terms and conditions is one thing, as it may help them to break down entrenched disadvantage and to attract new staff to schools where morale may have been low and staff turnover very high. However, by giving such freedoms first to the strongest schools may undermine the aims of the academy scheme and, therefore, the rationale for the approach to the rights of workers in the sector to collective bargaining. The rationale simply will not stand up. I hope that the Minister can respond with supportive language to these ideas. I look forward to hearing his views.

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[Baroness Sharp of Guildford]

My Lords, I am disappointed that the Minister was not more forthcoming on these amendments. It seems to me that over the years support staff have not been treated well and this was a positive move to give them status. However, given the lateness of the hour, I shall not pursue the matter further. Perhaps the Minister and I can have words about it later. I beg leave to withdraw the amendment.

Amendment 185A withdrawn.