Academies Bill [HL]

Lord Phillips of Sudbury Excerpts

Monday 21st June 2010 Lords Chamber

[Lord Rix]

My Lords, as the grandfather of a splendid little lad with Down’s Syndrome who is nine years’ old, perhaps I may say that the massive support that my noble friend Lord Low has received from around the Committee is music to my ears. I should like to add my support to the amendments.

[Lord Phillips of Sudbury]

My Lords, I hope that I am not going to spoil the party by referring to the first two or three amendments in this odd group. The debate seems to have become about the composition of school governing bodies which, as far as I can see, is the subject of a later group of amendments. Never mind; we soldier on.

The first two amendments in the group seek to amend the words at the start of the Bill:

“The Secretary of State may enter into Academy arrangements with any person”.

“Any person” seems an unambitious expression and one wonders why it should not, for example, say, “Any charity”. I understood the Minister to say earlier without equivocation—this is how I read the Bill—that only a charity can be “the other party” for the purposes of academy arrangements. If we were to get technical—which is what we are supposed to do in this House—we would consider the Interpretation Act, which states, I think I am right in saying, that “any person” is any corporate entity or any individual person. It does not, for example, cover unincorporated trusts—and a great many charities are just that.

If I had been kinder I would have raised these issues with the Minister before the debate, so I do not expect him to answer directly. However, I strongly recommend that the phrase “any charity” should be substituted for “any person”. That would be happier, clearer and avoid the technical argument I have touched on.

[Lord Bates]

Following on from the previous speaker, I should like further clarification on the rules concerning the new schools. It is desirable that the Bill should encompass all three types of new schools. This would, first, allow the best schools to become better by freeing them up; secondly, tackle the failing schools through the academy orders in Clause 4; and, thirdly, make provision for the new schools so that they, too, can become academies. It would be tidy if those three elements could be within the Bill.

We do not need to be too anxious about the burden that this will place upon the Government. Taking things in context, the brief on the Bill pack prepared by the House of Commons includes two or three helpful sections on new schools. It states that currently 19 per cent of the 3,200 secondary schools are judged to be outstanding and will qualify for the fast track. So that is potentially 600 schools out of 20,000. At the other end, depending on how you define inadequate Ofsted reports for longer than a year, there are about 100 failing schools. So, added together, that makes approximately 700 schools out of 20,000.

In the document Raising the Bar; Narrowing the Gap, which was the discussion Green Paper of the Government when they were in opposition, it was anticipated that the total number of new schools—roughly about 300 to 400—would be equivalent to about 220,000 places. I mention this for two reasons. First, all of the proposed changes might touch upon, potentially, 5 per cent of the total cohort of schools within the country. Therefore, the sense that this will send shockwaves through the entire system is unfounded and it is perhaps unfair to concern people about that. Secondly, the catchment areas of the new schools—

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[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.

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[Baroness Perry of Southwark]

I do not think that anyone who has spoken or, indeed, anyone in the House disagrees with the idea that consultation is a good thing and is probably right and proper. The only disagreement is on whether one needs to legislate for consultation or whether one trusts sensible and grown-up people to behave in a way which guarantees—or provides as near a guarantee as is possible—that their move towards academy status will be a success and will be accepted. As the noble Lord, Lord Adonis, has said, there are very few examples where consultation does not happen—not because it has been legislated for, but because grown-up people have behaved in a grown-up way.

I wish that sometimes in this House we could avoid the temptation to think that every good thing has to be legislated for. Sometimes we should trust people to behave sensibly and in a way that guarantees that when an academy is set up it has the enjoyment and consent of local people.

[Lord Phillips of Sudbury]

I should say briefly that all the amendments we are discussing are relevant to maintained schools converting to academies. They do not address the issue of creating an entirely new school, when there will be no pupils, parents or staff. Yet the need for consultation when a brand new school is created is surely pre-eminently more obvious than for even a school which is converting. I merely make that point; maybe my noble friend will provide some reassurance on that issue.

[Lord Hill of Oareford]

My Lords, as has been the pattern today, we have had a good and lively debate, which has certainly given me food for thought as we go forward. Perhaps I may briefly restate the amendments.

Amendment 3A would change who the Secretary of State could enter into academy arrangements with from a person to an individual or organisation. This is an unnecessary amendment because in law, a “person” is taken to mean either an individual or an organisation.

Amendments 4A, 101 and 102 would require proper checks of any person who was party to academy arrangements and, with Amendment 104, require the governing body of a maintained school to consult certain persons listed in the amendments before applying to the Secretary of State for an academy order. These people would include pupils at school, parents, school staff, staff trade unions, relevant local authorities, other local schools who might be affected and any other person who it is appropriate to consult. It is important to be clear that current legislation does not address these issues. These would be additional legislative requirements that the noble Baroness is seeking to introduce, although I recognise the point made by the noble Baroness, Lady Morris, quite properly and fairly about the change in status; currently there would be an obligation to consult if the school was to close. The circumstances are different and she is right about that.

I will first respond to the broad thrust of what the noble Baroness, Lady Royall, asked—why the urgency? Why can we not take some time? That point was in some way echoed by my noble friend Lord Greaves. I know that I have made this point repeatedly, but part of the answer to the urgency question is that, five years ago, the Government of whom she was a member set out down this path. Five years later, we are still debating it and that represents another five years of children who have not been able to take advantage of some of these freedoms that I know her party, when in government, were keen to extend. In another part of the answer to the urgency question, I underline the point that we made in previous debates that our approach to this legislation is fundamentally permissive, rather than coercive. Simply by putting a flyer there and saying to schools, “Is anyone interested in this? Are these freedoms something of which you would like to avail yourselves?”, more than 1,750 schools have said that they would be interested. Thinking about the point that my noble friend Lady Perry made, that tells us something quite powerful about trust, which one always has to balance against our natural instinct to try to make sure that nothing goes wrong. One needs to listen to those who are clearly keen to get on and feel that there is a need for urgency. My starting point in this is not so much the question of why we need to move so rapidly as of what is preventing us getting our skates on.

I turn to a specific point which my noble friend Lady Walmsley has already picked up on. It is already part of our process to carry out full due-diligence checks on anyone who is party to a funding agreement, and regulations also require CRB checking of all governors. I, like many Members of the Committee, I suspect, have been CRB-checked more times than I care to remember—although not because there was a particular problem, I should make clear.

I was struck by the point that the noble Lord, Lord Adonis, made about drawing a distinction between the spirit of consultation and making it a legislative requirement. He gave examples of the difficulty of getting a satisfactory definition in the Bill within which everyone could operate—and which did not have the problem alluded to by the noble Baroness, Lady Morris, of the old system of ballots, which caused acrimony—and which would not give people who, for particular reasons, might want to frustrate this policy the opportunity to do so. I think that there is broad acceptance on her side of the Committee that the policy is fundamentally good, and these are the detailed questions that we are working through. I was very persuaded by the noble Lord, Lord Adonis, concerning the dangers of being overly legalistic. However, I also accept the point made by him and many other noble Lords on all sides of the House about the spirit of consultation. It is something that clearly one must take seriously.

We certainly expect schools, in deciding whether to make an application to convert, to discuss their intention with students, their parents and the local community. A point that has been well made by a number of Members of the Committee is that that is what happens already, and it would not make sense for a school not to do so. The governing body of any maintained school that is considering converting does, and will, include parent governors, staff governors and local authority governors. These governors will all be part of the decision-making process. Currently, the employer of a school’s staff would also need to conduct a TUPE consultation with all staff and the unions as part of the staff transfer process. On a small point of fact—I know that this point has been raised before—I say to my noble friend Lady Walmsley that there is not a minimum 10-week consultation period; the time is not specified in law but there would clearly have to be consultation with all staff and the unions as part of the process.

In response to a point about informal consultation that I think was made by the noble Baroness, Lady Howe—I hope I shall be forgiven if it was not her—I shall try to be brief as I know that supper beckons. The departmental website will make it absolutely clear that we expect teaching staff, other staff, parents, pupils and the local community to be consulted. The question with which we are grappling—the debate has grappled with it this evening—is how far this process needs to be formalised, with the risk that that might either slow it down or make the process acrimonious. Our view is that there are clear disadvantages—

Academies Bill [HL]

Lord Phillips of Sudbury Excerpts

Monday 7th June 2010 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, first, I congratulate the Minister. I hope he will at least read my congratulations. I wish him well in his demanding position. In this House one has the task of concentrating on what one perceives as weaknesses in a Bill, but I should not let the opportunity pass to say that there are many extremely good and forward-looking measures in this one.

As one who habitually complains about the amount of legislation put forth by this and the other place, I add that this is an extraordinarily complex Bill, short though it is by modern standards. I fear that it will give my profession a wonderful feeding ground for the future. However, the task of the House in Committee and at later stages is to improve on it. I will quickly mention that it seems as though the powers of the Secretary of the State to enter into academy arrangements, as they are called, and to make academy awards are entirely discretionary. Even if an applicant fulfils the characteristics required of it, it will not, by any means, certainly get academy status. The Minister might like to ponder on that.

I will also mention the charitable status provisions of Clause 8, which say that all academies will, ipso facto, be charities. It is an inadequate clause, most particularly because it does not make any provision for a regulator. It is, in my view, essential that the regulation of this new body of schools be on a statutory basis. It must require the regulator to make an annual report to this and the other place. They must be accountable and transparent.

Secondly, I am a little foxed, and again, I hope the Minister might, in winding up, let the House know whether the provisions of the Bill are so framed as to allow the promoters of one of these schools, in effect, to outsource the running of the school to a profit-making provider. If that is the intention, I have to say that—as one who spends much of his life advising on charity law—I am not at all sure that the arrangement would be properly lawful. That will need careful consideration.

I echo briefly, because it so important, the remarks on implementation of the Bill that have been made by various noble Lords. It seems that we are rushing our fences with the Bill. There are hugely important matters to consider, plan and consult on before a single academy school under the new aegis should be up and running. I hope that the consultation requirements will be in the Bill, as they are in many other Bills, including the late-lamented and soon-to-be-consigned-to-oblivion identity cards Bill.

I will spend the rest of my time talking about new free schools. They are not specifically mentioned in the Bill or the notes accompanying it. However, the Government must sing their own tune with regard to new schools. They will, no doubt, be called academy schools. However, they are not schools that are converting from an existing maintained school; they will be created by parents and other interested parties. I commend the Minister in the other place, Mr Michael Gove, for what he said about this. He said at the beginning of his speech that we are,

“dedicated to ensuring that every child has a better start in life”.—[Official Report, Commons, 2/6/10; col. 455.]

Later, he said:

“We have—we have been bequeathed—one of the most stratified and segregated school systems in the developed world … That is why we are pressing ahead with the sort of changes that will drive improvement across the whole of the state school system”.— [Official Report, Commons, 2/6/10; col. 463.]

That is my concern. Unless the new schools are constrained by the addition of characteristics to Clause 1(6) to make sure that this danger will not occur, there is a real prospect that they will do the very thing that the Secretary of State and the Minister in this place said that they were committed to preventing—that is, widening the gap between the best schools and the worst schools, to put it crudely.

The particular danger is that the new schools will siphon off pupils from the more middle-class families, leaving existing schools with a depleted intake. I spent this morning in my native town of Sudbury in Suffolk, which is an absolutely typical English market town. It currently has two secondary schools serving 25 or 30 villages. I was told by the excellent head and the chair of governors of one of the two, Cornard Upper School —my wife is a governor of the same school—that its position under the Bill could be made extraordinarily difficult. I am absolutely sure that that would be inadvertent, but our job is to guard against inadvertence. The key school in its present catchment area is proposing to set up as a new school. There are three principal damaging effects of that probability. First, it will unbalance the existing intake of the school. The head, Michael Foley, put it like this:

“All I can tell you is that in this area, the formation of a free school in one of the surrounding villages would lead to segregation by default. The existing fully comprehensive school, which has allowed children from all backgrounds to flourish … would be replaced by two schools in stark contrast: one with a largely privileged intake and the other largely populated by children living in challenging circumstances”.

It is a commonplace that in the past 20 or 30 years villages around cities and towns have become gentrified.

Then there is the massive cost of creating a new school. The local authority reckon that it will cost £4 million just to uprate the buildings of this feeder school to enable it to gain new independent status at a time when Cornard desperately needs to modernise its existing buildings as 10 classrooms leak when it rains. It is fruitless to pretend that the capital expenditure on these new schools will not affect the budgets and incomes of the existing maintained schools.

There is a third potential problem with the new schools, unless we guard against it. Cornard school will lose 40 per cent of its intake. That will create real viability problems with huge cuts in staff, massive disruption and consequent denting of morale in a school which this year has received a certificate from the Specialist Schools and Academies Trust stating that it is one of the most improved schools in Suffolk. The LEA in Suffolk noted that it had achieved the greatest added value over the past year. The Ofsted report stated that it was “a good school”. It continued:

“The quality of care, guidance and support that is provided for students is outstanding. The school has gone from strength to strength since the previous inspection”.

I urge the Government to include a further characteristic in Clause 1(6) along the lines that a new school can be established and maintained only where, on balance, it will improve education not only for its own pupils but for those of adjacent schools.

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[Lord Hill of Oareford]

I fear that, if I may, I will need to write in more detail to the noble Baroness. I understand her point, but I do not want to get myself into deep water. I will follow this up with her specifically.

[Lord Phillips of Sudbury]

Before the Minister goes off the subject of charity, and given that the Charity Commission is a highly effective and experienced regulator of all sorts of other charities—large and small—does he think it sufficient to leave the regulation off the face of the Bill? I am thinking particularly of the desirability for public accountability of regulation.

[Lord Hill of Oareford]

That, too, is a point on which I need to reflect. Generally, I will follow that up with the noble Lord if I may.

Consultation was a recurring theme. It was raised by the noble Lords, Lord Turnbull and Lord Greaves, and the noble Baronesses, Lady Garden and Lady Williams of Crosby. The concern was expressed that there would not be sufficient consultation with parents or others. Current legislation does not require consultation with parents or the local community on the acquisition of academy status. The Bill does not change that. However, we anticipate that schools will want to consult parents about this, as they do at present.

In addition, maintained schools have parent governors who will be able to take part in the governing body and the decision-making process on whether to convert to academy status. Consultation with staff is another important point. Schools are required by the TUPE regulations to undertake appropriate consultation. We are advising schools on how best to carry out that process. That is linked to the point made by the noble Lord, Lord Turnbull, about speed, which I will return to in a moment.

The role of local authorities is clearly of great importance. I repeat a point that I made in the debate on the gracious Speech and earlier: there is, I hope, nothing in the Bill that noble Lords will interpret as an attack on the role of local authorities. We do not seek to send that message. Strong local authorities will remain central to the Government’s plans to improve education. We want to work with local authorities on what these changes will mean. We certainly envisage that local authorities will have a strategic overview of services in the local area and that they should help to support parents and pupils to choose a good school as part of a mixed economy of schools provision. They will retain a key strategic role in supporting the delivery of educational excellence. The law already allows local authorities to supply goods and services to schools, including academies. Many academies buy these services from the local authority. We expect this to continue. Nothing in the Bill will prevent an academy from buying a service from a local education authority and, if the academy considers the local authority to be the best supplier of that service at the best value, I am sure that it will continue to do so. As I have said, the local education authority will retain responsibility for ensuring that pupils’ SEN needs continue to be met.

The speed of the process was another recurring theme. The noble Lord, Lord Turnbull, led the charge, but the noble Baronesses, Lady Massey, Lady Sharp and Lady Royall, returned to it. I underline the fact that schools can carry out this process at their own pace. I understand the point, which has been raised before, about expectations. There has, perhaps, been a sense that the Government expect all outstanding schools to be ready to go in September—that they are rushing and that schools are being encouraged or pressured to convert by September. That is not the case. The aim of the Bill is to be enabling and permissive rather than coercive. Our wish is for schools to do this at their own pace. We believe that some schools will be ready to convert at an early stage. Others will certainly choose to convert at a later date. We are currently telling schools that we expect the fast-track process for outstanding academies to take three months, although a longer process may well be needed in exceptional circumstances. It should be noted that not all the outstanding schools that have so far expressed an interest in converting want to convert as soon as September 2010 or will be able to do so. Although we want to give the schools an opportunity, I am conscious of this point, and we will not force any school to do it any quicker than it wants to.

I say in response to a point raised by the noble Baroness, Lady Sharp, that converting outstanding schools will not take priority over academies already in the pipeline. I am assured that we are able to deal with both. Nor do outstanding schools need to have an external sponsor. They will in effect be self-sponsoring, which will include existing arrangements with faith bodies.

The pupil premium, to which the noble Baroness, Lady Walmsley, referred, is to be separately funded and will not be used as a subsidy for academies. We believe that academies have proved their success. I think that that point is broadly accepted on all sides of the House. Where they have worked well, their impact has been tremendous. This Bill will allow more schools to become academies, with a simpler application process and more trust given to the professionals who we think can and should be making decisions about how their school is run.

Raising standards in all schools is our primary goal—seeing the best performing schools do even better, supporting others to do the same, being more ambitious for the schools which are doing a good job but which could do better and transforming those schools which are underperforming and currently not delivering the standard of education that their pupils and parents rightly expect. We believe that academies are an excellent mechanism for achieving those aims placing, as they do, school improvement at the forefront of their focus, and working in a flexible way to achieve that. This is an important Bill. I am grateful for the advice that I have received today from all sides of the House. I look forward to continuing these important discussions in Committee, for however long that takes. I commend the Bill to the House.