Academies Bill [HL]

Lord Phillips of Sudbury Excerpts

Monday 21st June 2010 Lords Chamber

Moved by

[Lord Phillips of Sudbury]

4: Clause 1, page 1, line 4, at end insert—
“( ) If the Academy arrangements are entered into other than in relation to a maintained school converted into an Academy, the Secretary of State must be satisfied that the new Academy meets a public need in the area concerned and will not cause undue detriment to any neighbouring school.”

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[Lord Phillips of Sudbury]

My Lords, this is a broadly good Bill, but in boldly extending academy status from underachieving schools to any school, we must surely ensure that the Bill does not inadvertently undermine its avowed purpose,

“to raise school standards for all”.

Michael Gove in the other place and the noble Lord, Lord Hill, in his accomplished Second Reading speech here emphasised that primary focus of helping the educationally underprivileged. Mr Gove put it this way:

“We believe that the function of the state is to promote equity … the power of the state should be deployed vigorously to help the vulnerable and the voiceless, those who lack resources and connections, and those who are poor materially and excluded socially”.—[Official Report, Commons, 2/6/10; col. 463.]

My amendment is to ensure just that—that the coalition walks that talk and exemplifies its values. It addresses the risk that the free schools—the brand new academies—do not cause undue detriment to existing neighbouring schools. I accept that that would never be the purpose of any group promoting such a new school. However, sometimes any of us—indeed, all of us at times—can so concentrate on our own children and our own back yard that we overlook the needs of others. That is a particular danger when social considerations intrude, as they too often do in this country, vis-à-vis education. At Second Reading I gave an example from my own part of Suffolk of the proposal to convert a feeder middle school into a secondary academy school. That would devastatingly undermine the really good school into which it feeds by the consequent impact on its entry numbers and all that that would mean for finances, staffing, social balance and, ultimately, morale.

Britain is still a sorely disfigured country—disfigured by acute inequalities of life chances. That underlines, among other things, our social and law and order problems, and leads to huge financial and moral setbacks. It is against this backdrop that I very much hope that the Government—my Government—will accept this constructive amendment, which will provide an essential but practical safeguard against the unintended consequences of the Bill as it stands.

[Lord Adonis]

The noble Lord is a stickler in this House, and rightly so, for precision in language and comprehensibility in legislation. In his amendment he uses some very general terms. He talks about the Secretary of State being satisfied that an academy meets “a public need” and that it,

“will not cause undue detriment”.

Will he set out somewhere for us how he defines “public need” and “undue detriment”?

[Lord Phillips of Sudbury]

My Lords, the noble Lord made much the same point before the dinner break. If he looks back over some of the legislation that he introduced, he will find that it is peppered with considerations and language of that kind. You cannot legislate without using general terms. The amendment that I have put forward has a long-stop protection in that it is capable of being judicially reviewed. If the noble Lord were to suggest that that is the very evil against which more precise language would guard, I would have to tell him, first, that more precise language cannot be used in a situation such as this and, secondly, that to give a controlled guided discretion to the Secretary of State is a device used in every Bill in every month of every year in this place. I am confident that it will work in this case. You have only to look at Clause 1(6), which refers to,

“pupils who are wholly or mainly drawn from the area in which the school is situated”.

You could argue till the cows came home about what “mainly” means and what,

“the area in which the school is situated”

means. As I say, at times legislative language must, and can only, resort to generalities. I think that the amendment I have produced is capable of being used practically and to effect. The alternative would be to have nothing in the Bill, which I suggest would be the worst of all worlds.

Given the backdrop that I have described, I very much hope that the Government will accept this amendment, which does not apply, of course—I have specifically excluded it from doing so—to maintained schools converting to parallel academies, which will be by far the larger number. However, there would still be a significant number of new free academies, which must surely also be expected to serve the higher purpose of educational justice for all, not just their own pupils. A big society, surely, must be an equitable society, particularly towards its most needy. My amendment may not be perfect, but something like it must be in the Bill if we want to end what Mr Gove called in his Statement today a “segregated and stratified” school system. I beg to move.

[Baroness Royall of Blaisdon]

My Lords, Amendments 191 and 114 are intended to probe the Government’s view of the long term of this reform and speak to concerns expressed elsewhere in this debate. In answer to questions about the Statement on free schools, I think that the Minister spoke of pilots, although I may be wrong. The amendments to which I speak ask the Government to pilot the Bill’s approach in limited areas, or initially to cap the numbers of these new academies so that the effect on nearby schools can be considered in the light of experience. It seems reasonable to me that if the effects that have been forecast of the disruption and funding shortfalls for vital services transpire, we will know that proceeding further along this road would be an error. Other amendments in this grouping discuss the need for openness and the consideration of the wider effects of this policy when proceeding with changes of status on this scale.

Amendments 119 and 177 relate to the criteria for acceptance of an application for conversion to an academy. Crucially, they relate to the need to consider the local impact of the change in the round and to consider the impact on community cohesion of the change to academy status. These constitute very real concerns. The amendment to which the noble Lord, Lord Phillips, spoke also addresses the local impact of these schools. I support the amendment. Questions need to be answered in relation to the example that he gave of a school in Suffolk.

Amendment 76A seeks to introduce a requirement for academies introducing new or significant sixth-form provision to consult existing providers of sixth-form courses, including sixth-form colleges and FE colleges in the area. It also seeks to ensure that academies are part of regional and subregional planning groups for 16 to 19 provision. This will ensure that there is no duplication of existing provision within an area and avoid inefficiency.

Local authorities currently act as commissioners for courses for 16 to 19 year-olds funded by the Young People’s Learning Agency. They engage with all providers across local authority boundaries to ensure that courses are provided which meet the needs of students and provide the best value to taxpayers. We would need to be assured that that process would continue with academies, because there needs to be an overview.

Amendment 92A seeks to introduce a fair funding element to 16 to 19 year-old provision in academies to ensure that 16 to 19 year-olds are not treated more favourably than existing providers of education for 16 to 19 year-olds. Currently, if an academy provides or introduces new 16 to 19 year-olds’ education, the funding is top-sliced from that which is given via the YPLA to other providers in the area. This funding is provided on the basis that all the places offered by the academy will be filled.

That is not the case for other providers, which are funded on the basis of the places that they have filled in previous years. It can also create an anomalous situation whereby, if places are not taken up at an academy, but the students instead choose to go to a sixth-form college, it is still the academy rather than the college that receives this funding for those places. That creates a financial incentive for academies to offer courses for which there is no or little new demand. I am not an expert in these areas, but when I was alerted to these specific issues, it seemed that these were the very issues that we should be probing and seeking answers on from the Minister.

These amendments are not designed to shackle the Secretary of State and they do not prevent him continuing with his plan. They merely seek to assure those who have perhaps been unnerved by the speed with which he is pursuing an end to any form of community accountability for schools.

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[Lord Adonis]

My Lords, I am sorry to return to the amendment tabled by the noble Lord, Lord Phillips, but I believe that it is fundamentally unworkable. It is not a question of judgments having to be made about terminology in legislation; these judgments have to be made the whole time. The problem with his amendment is that there are deeply competing interpretations within the education world as to what the words he has used in his amendment would mean. Having been on the receiving end of representations about the setting up of new schools, including schools in the county from which the noble Lord hails, I can tell him that he is setting up a procedure that will see every proposal for a new school that does not have near universal local support end up in the courts being bitterly contested because of the imprecision of language that he proposes to impose on the Bill.

Let me take the two specific terms he uses: that a new academy must meet “public need” before the Secretary of State is allowed to agree to it and that it should not,

“cause undue detriment to any neighbouring school”.

King Lear got this right more than 400 years ago when he said:

“O, reason not the need! Our basest beggars

Are in the poorest thing superfluous”.

But when it comes to defining need in respect of new school places, two fundamentally competing views are held. One is that “need” should be defined as a numerical need for additional places, while another and essentially different interpretation is that “need” should be based on parental demand for a new type of place or, as alas is too often the case in local authorities with a large number of failing schools, for better places, which is what has driven so much of the academy movement. It is not that there have not been enough school places in a locality, but that they have not been of a quality that parents in good conscience wish their children to take up.

The noble Lord owes it to the Committee to be frank and direct about which concept of need he has in mind. Is need to be defined simply as a numerical need for places or is it to be defined in terms of appreciable parental demand for a type of place—it could be for Montessori-type schools with a different educational philosophy—or better quality places than those on offer in the existing schools?

[Lord Phillips of Sudbury]

I am grateful to the noble Lord for giving way, but he has rather challenged me. The answer to his question is this. My amendment leaves a discretion with the Secretary of State, and it will be for the Secretary of State to decide on the two or more interpretations of need. In the same way, it will be up to the Secretary of State to come to conclusions about undue detriment. If, through guidance, the Secretary of State gives a further indication of how the two tests have been interpreted, all the better. But as the noble Lord is well aware, the only basis on which this could be challenged in a court—and challenges to ministerial discretions, which are widespread, are extremely rare—would be that the Secretary of State had acted in a way that no reasonable person could have acted.

[Lord Adonis]

My Lords, I do believe that that is a straight cop-out. Parliament has to be clear on what it means. There are two competing notions of need here and Parliament needs to state, before it charges the Secretary of State with these responsibilities, which one it means. As for judicial reviews and legal challenges being rare, there was one point when I was in the job now being done by the noble Lord, Lord Hill, when I was barely out of the High Court and the Court of Appeal on challenges to academies, most of them with support from the National Union of Teachers and a good number with support, one way or another, from bodies associated with local authorities. So Parliament needs to be clear on what it means.

We come then to “undue detriment”. Again, there are two competing views of what this is. It could be taken to mean making another school or schools totally non viable or it could be taken to mean that it would have a serious, definable or appreciable impact on another school or schools. Again, there is a fundamental difference between those two concepts of detriment—whether the detriment causes a school to become non viable or whether it simply has an impact or an appreciable impact. Again, Parliament needs to be clear which of the two it means.

This goes to the central point about school improvements as well. The noble Lord’s amendment says that the Secretary of State may not allow a new academy to be established if it causes undue detriment. I have to say that in many cases it is the dealing with the undue detriment that should be the duty of the Secretary of State or the responsible local authority using the huge array of school improvement powers available, including those that the Government of whom I was a member provided over 13 years. The idea that parents should not be able to access new or additional school places in areas where the schools are not providing good quality places simply because the provision of those places will cause detriment to other schools fundamentally ignores the interests of parents and their right to have a decent quality school to send their children to. If there is not such a decent quality school and someone is prepared to do something substantive about it, they should be applauded and not put through the legal rigmarole that the noble Lord is proposing, which will work fundamentally against the interests of parents, particularly in places where schools are not of a high enough quality. The imprecision of the language, where it is not clear what the definitions of essential terms such as “detriment” and “need” will be, will ensure that the only people who will gain from this are the lawyers, who will make huge fees while this is fought out in the courts over many years.

[Lord Baker of Dorking]

My Lords, I support entirely what the noble Lord, Lord Adonis, has said. It is a pity that he is not saying it from the Labour Front Bench because he is absolutely right.

On listening to the debates both before and after dinner, I was struck by how similar they were to the debates on the Education Reform Act 1988, when I decided to establish two groups of independent schools—city technology colleges, which were totally independent of government and financed by business people, and grant maintained schools, which were almost independent of government—which we had to get through as a result of an elaborate electoral process which in those days your Lordships tried to hinder, restrict and limit. I was told at the time that these schools would destroy the education system, that the detriment to schools would be overwhelming and that ordinary secondary schools would be undermined and destroyed. That is not what has happened.

In 1988 the Labour Party objected so strongly that it said it would abolish them all; that it would destroy them as soon as it came into power. That did not happen. The noble Lord, Lord Whitty, was a member of a Government who actually expanded and developed them at the expense of local education authorities, I would remind him. He was a senior member of a Government and a Minister of State who approved all this. The CTCs were not voted down. They became beacon schools which other local schools tried to emulate.

In the early days of city technology colleges, the local education authorities opposed them so strongly that they told the other local authority schools for which they were responsible to have nothing to do with them; not to play games with them. The noble Lord, Lord Phillips, will remember; he was in the House in those days. The local authorities ostracised them; they said that they were the cuckoos in the nest that would destroy them. Now they tell them to co-operate with them; they are trying to imitate them and to reach the standards that they have established. That is an enormous change, as it was with the grant-maintained schools. I shall allow the noble Lord, Lord Whitty, to intervene but I want him to listen to me for a moment. Again, the Labour Party spent 10 years totally opposing the grant-maintained schools and then it reinvented them and called them trust schools.

However, let us forget all of that. I do not want to make party points tonight. This provision for alternative types of schools is good for the whole education system; it drives up standards. As the noble Lord, Lord Adonis, said, if parents are dissatisfied with a local school and the local authority has tried to improve it—it has thrown resources at it and changed the head three times in two years and done everything it can—and it still has not happened, what does it do? Just let it go on to the detriment of all the pupils? I shall give way to the noble Lord, Lord Whitty, in a moment, because he is being stirred, but I shall give way to the noble Lord, Lord Phillips, first.

[Lord Phillips of Sudbury]

I am intrigued. Is the noble Lord, Lord Baker, saying that the creation of a new school cannot severely damage an existing good school? If he acknowledges that it can, is he saying that nothing should be done about it?

[Lord Baker of Dorking]

Very often, if there is a good local school there will not be the creation of another school. If you have got a very good primary school that is satisfying the demands of the parents and children, you will not get another group of parents and teachers wishing to create a new primary school.

The noble Lord does not know how difficult it is to start a school. For the past three years I have been starting new schools—at first with Lord Dearing—the new university technical colleges. It is a hard row to hoe because many people do not want it. These are colleges for 14 to 18 year-olds—which is disruptive for an 11-to-18 system for a start—specialising in technological and academic subjects. When Ron and I started, local authorities were not very interested. They did not like them for all the reasons that the noble Lord gave: they hurt good schools. Now I find that local authorities are coming to my little team, saying, “We’d like one of those, please”. They have seen that it is a new model that they like; it is better. I do not believe for a moment that a good school is threatened—that is rubbish, if I may say so to the noble Lord. He should not get up; he has had his go. Only bad schools are threatened; that is the problem. I can tell the noble Lord that it takes enormous effort to get a school started—to get parents together, to get teachers together. Meetings do not happen. Who is the champion? Can they bring it together? Then we have a divisive curriculum. Then they have to find support and make it viable economically: they have to find a primary school for 150 pupils and a secondary school for 500 to 600 pupils. That is an enormous hurdle. All the hurdles that Members of this Committee have tried to put in the way of the new schools over the past few hours is nothing compared to the task that committed groups will have to take on. That is the reality of life. It requires enormous effort and a tremendous act of corporate activity. We should not try to hobble and hinder that activity too much.

I prefer working with local education authorities. For the schools that I am establishing, we talk first to the local education authorities. If you are creating 14-to-19 colleges, they have to accommodate the 11-to-14 pupils. They also have to accept that it is a very different body in their school organisation. But now I am finding that local authorities like it. It is novel; it is different; and it will be effective. It will be effective, because in every comprehensive at age 12, 13 and 14, you have a vast number of disengaged pupils who do not want to continue in their local comprehensive school. We are providing an alternative which the state system has not yet provided. It provided it back in the 1950s as technical schools, but they failed because they were skill by snobbery. That is why we get a university to sponsor each of our colleges.

I therefore say to Members who are anxious about all this disrupting our education system that the new academies, to the extent that they will exist in the future, will improve our education system. They will improve the standards; they will get the commitment of local people, which will be very energetic. Even the Liberal Party knows how difficult it is to get local people to do anything—even to vote for them occasionally. So let us imagine how difficult it is to get local people committed to establishing a new school. That is why the Government are trying to make it as easy as possible. We should not make it too difficult for them to do so. This is a very imaginative proposal by the Government and it should be welcomed. It will be welcomed first by the Liberal Party—obviously; it will be welcomed reluctantly by the Labour Party, just as it came to welcome the city technology colleges and the grant-maintained schools. It is only a question of time. It is still in the mode of fighting the last election. When it starts fighting the next election, it will begin to realise that what we are saying is really rather attractive, responsive to the needs of people and beneficial to the education of our country. I cannot wait for the day.

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[Lord Hill of Oareford]

I apologise to the noble Lord. The word “police” came unwittingly from my lips. He may have sensed that I was fumbling my way through my sentence and I withdraw it unreservedly.

It is our view that, with regard to local decision-making, involving individual schools, teachers and parents is about as local as it is possible to get. We can argue about how we make that work, but I think that that is pretty local. We think that responsibility for educating children and young people should be devolved to the most local level possible. It is that principle, which I know that the noble Lord, Lord Whitty, disagrees with strongly, which has led us to decide that local authorities should not be in a position to veto academy conversions. We know that existing rights in the past have meant that that has happened. If we were to give local authorities the right to be consulted on aspects of this new conversion process, our fear would be that they would be frustrated as it has been frustrated in the past. As has already been set out very eloquently by others, the need to tackle problems of education failure is too urgent to allow that to be frustrated.

I turn to the individual amendments. Amendment 4, moved by my noble friend Lord Phillips, would require the Secretary of State to be satisfied, before entering into academy arrangements, that any new academy met a public need in an area. We had an interesting debate in the House in which these points and the potential legal downsides were aired. I have listened with care to the points made by my noble friend Lord Phillips. He and I have discussed this issue and the specific case that he has in mind, so I understand his view. I agree with the noble Lord, Lord Adonis, on the amendment. I am concerned about its wording, which could give rise to the danger that the noble Lord, Lord Adonis, pointed out. The whole point of the free schools policy is that in some cases the proposals should be able to cause detriment to a school if that school has been failing and has let children down repeatedly over a long period. Such a school should be able to be challenged and detriment should be caused to it, so that a new and better school can be established or the school ups its game and improves the education that it offers. That said—

[Lord Phillips of Sudbury]

I regret interrupting the noble Lord, but he misses the main point of my case, as did the noble Lord, Lord Baker. Considerations on the part of some of those who wish to form new schools are not genuinely to do with educational need; they are—let us put it brutally—about a sort of social separateness. I am thinking of the leafy suburbs to which the noble Lord referred. The case that I referred to at Second Reading and tonight involves a good and improving school—indeed, it is the most improved school in the county of Suffolk—which will, according to its head and chair of governors, be mortally damaged if the new school is created. I cannot believe that that is what this coalition Government want to enable.

[Lord Hill of Oareford]

I understand the point that my noble friend Lord Phillips makes. As I said, we have discussed it. It is in no one’s interests to come up with proposals that would damage education overall in an area. That is not the intention or purpose.

The decision whether to go ahead with a free school will not be taken in isolation. The Secretary of State has the discretion to take all relevant considerations into account as part of the approval process. Those considerations would, I am sure, include the kind of issues that the noble Lord, Lord Phillips, raises. I go back to my earlier point: it seems inconceivable that concerns of the kind that he has raised with me and the views that I know are held by the people concerned with this case would not be made known, not least by my noble friend. The Secretary of State would have to reflect on those in making his decision.

During the application process, proposers will be expected to discuss their plans with any local partners, including the local authority, and we will encourage them to do that. The Secretary of State has said—as I mentioned in our debate about the free schools announcement, he wrote to local authorities about this at the end of last week—that, alongside other checks in place, he will talk to local authorities to make sure that he fully understands the local context and circumstances before making a final decision on whether to support the establishment of a free school.

I hope that these are common-sense and practical reassurances and that they will provide some comfort that the process gives the Secretary of State the flexibility to take these issues into account. As I also mentioned, these are early days of the free schools policy. Our approach is to work through the implications of the applications as they come in. I am sure that, over time, we will resolve these issues; we certainly have a willingness and desire to do so.

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[Lord Hill of Oareford]

I will certainly reflect on that point and see where my reflections take me. In conclusion, I urge all noble Lords not to press their amendments.

[Lord Phillips of Sudbury]

At this hour, and having had this very considerable and useful debate, I am sure that it is incumbent on me to withdraw my amendment.

Amendment 4 withdrawn.