Children’s Care Homes: Private Equity
Lord Whitty Excerpts(10 months, 3 weeks ago)
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Baroness Barran (Con)
The first thing—whether the noble Baroness agrees or not—is that it provides an enormous amount of capacity, and in her zeal to address the profitability of the sector we need to consider also the stability of those placements for children.
Lord Whitty (Lab)
My Lords, I think it was only two Prime Ministers ago who promised before the last general election that they would fix social care. The problems that we have talked about today apply to the whole of the social care sector. In effect, those who pay for care—whether for elderly parents or local authorities for children and others, who are very vulnerable people—are subsidising private equity companies’ profits. When are the Government going to get round to fixing it and have a whole new policy for social care that improves the conditions for everybody?
Baroness Barran (Con)
We have announced our new social care strategy. The noble Lord will be aware of the independent review of children’s social care, which we have acted on. We are now starting to implement the initial pathfinder sites to test our new family-led approach to social care. As he said, these are vulnerable children and families, so we need to do this judiciously.
Small Business, Enterprise and Employment Bill
Lord Whitty Excerpts(9 years, 11 months ago)
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Lord McKenzie of Luton (Lab)
My Lords, I shall speak also to Amendments 35K and 35S. These amend Clause 38, which currently provides for the Secretary of State or the Minister for the Cabinet Office to make regulations imposing duties on contracting authorities in relation to procurement functions. Ministers would have the power to issue guidance, to which contracting authorities must have regard. Contracting authorities for this purpose include Ministers, government departments, devolved Assemblies, fire and rescue authorities, and local authorities of all varieties but do not include an authority whose purpose is mainly devolved functions. Such definitions derive from the 2006 regulations, which implement the previous public sector procurement directive.
The power can be used in a variety of ways to impose obligations relating to supposedly efficient and timely procurement, duties relating to the process by which contracts are entered into, information flows and documentation, as well as the accepting of electronic invoices, the latter in advance of the anticipated e-invoicing standard to be adopted at EU level.
Concern about these provisions has been highlighted by the LGA in particular. The fear is that the powers might be used to centralise procurement and introduce a one-size-fits-all approach, impairing councils’ ability to procure strategically and according to local circumstances.
Local government can already claim to be the best-performing part of the public sector when it comes to procurement. It primes suppliers on time, places almost half its business with local SMEs and uses procurement to consider how it can improve the economic, social and environmental well-being of communities. Amendment 35D seeks to ensure that the exercise of the powers in Clause 38 do not undermine, and have due regard to, local authorities’ duty to promote economic growth and skills development in their areas, that advertising and procurement tender periods are appropriate, and that the potential for the harmful local impact of central procurement processes is avoided.
The Government’s approach, I understand, stems from the second report of the noble Lord, Lord Young of Graffham, who I am delighted is with us today. The report, entitled Growing Your Business, was expressed to be a report on growing micro-businesses in particular. It instanced the £230 billion spent on goods and services across the whole public sector and the potential transformational effect that could be had on SMEs and micro-businesses if they could win a share of the market.
The noble Lord recommended that all parts of the public sector agree a set of single-market principles. He seemed to have in his sights pre-qualification questionnaires and what he termed the gold-plating of training and health and safety policies. His common principles included the removal of all PQQ requirements for contracts below the EU threshold, with a single standard PQQ above the threshold, locating all contract opportunities in a single place and standardising all the payment terms. I understand that these changes are being implemented through the 2015 regulations, which are the UK’s transposition of new EU procurement directives and are seemingly not dependent on the provisions in this Bill. Can the Minister clarify whether the transposition regulations can be subject to an imposition under Clause 38?
The Government consulted beyond this in October 2014 and we are blessed with a Cabinet Office policy statement dated 12 January and draft illustrative regulations on similar policy measures, a pre-procurement engagement with suppliers and applying lean sourcing principles. The paper also sets out the government view on a range of other procurement issues to which Clause 38 might apply.
I draw the Minister’s attention to a briefing we had from the LGA about the use of pre-qualification questionnaires. It says that councils sometimes need to use pre-qualification questionnaires in lower-value procurements to deselect suppliers, particularly where a large supply chain exists; for example, in construction or ICT sectors, or where there may be issues of safe- guarding and tendering. A smaller number of suppliers reduces the potential risks for vulnerable people. How does the Minister respond to that concern?
We are wholly supportive of harnessing public sector procurement to create significant business growth opportunities through increase participation for small and medium-sized businesses, but local government already has an environment and a procurement framework in place and it is very important that Clause 38 and its potential use does not undermine this. The Local Government Act 1999 places a best value duty on local authorities. In addition, a duty to consider how the services they commission and procure might improve the economic, social and environmental well-being of an area is placed on a range of public bodies by the Public Services (Social Value) Act 2012. Moreover, the LGA has developed a national procurement strategy for local government in England which not only encourages the making of savings but supports local economies.
I refer the Minister to the executive summary of this document and, in particular, references to the importance of including economic, environmental and social value criteria in all contracts. On improving access for SMEs and voluntary, community and social enterprises it says:
“Councils should ensure a wide range of suppliers are encouraged to do business with them through use of portals to advertise tender opportunities. Barriers to doing business with the council removed without compromising due process. SME’s and VCSE’s are encouraged to identify potential ‘partners’ with whom to form consortia to bid for council contracts”.
To what extent is it considered that the existence and operation of Clause 38 will remain entirely consistent with the national framework that the LGA and local councils have developed?
We should be mindful of the current appetite, in different ways across the political parties, for devolution of powers and fiscal responsibility to local authorities. This is supported by provisions in the Localism Act 2011, but I caution that the term “localism” could not reasonably be applied to all its provisions. Some of the provisions in the so-called Localism Act are quite the reverse. This devolution is currently proceeding partly by way of city deals, which we support, and gives increased local control to enable more flexibility to respond to local priorities, particularly skill shortages. As a party, we have proposed more extensive devolution, at the level of £6 billion a year, to cover skills, housing, transport and business support.
Our Amendment 35S provides that nothing in Part 3 should affect the principle of localism and the duty of best value placed on local authorities. As the LGA points out, all the evidence shows—and there is compelling evidence across a wide range of issues—that taking decisions closer to the people affected achieves better results and saves money. The economic benefits of devolving powers to local areas are too big to ignore.
Our amendments seek to ensure that these benefits are not undermined by a centralised procurement policy. Figures supplied by the LGA point out that there is little evidence that measures undertaken by central government—for example, lean procurement processes—have significantly increased spend on SMEs, which is less than 14%, compared with council spend at 49%, unless the Minister can produce some evidence for us. As for reviewing the manner in which pre-procurement market engagement has taken place, can the Minister explain how this proposal is consistent with a localist agenda?
We would not seek to deny this clause, but we need to be assured that it will not impede the substantial progress that has been made in devolving powers and resources to local authorities and the benefits that flow from this. I beg to move.
Lord Whitty (Lab)
My Lords, I have two amendments in this group. I completely endorse what my noble friend has said and will not repeat it at length. However, I think that the Government need to rethink this area.
Clauses 38 and 39 give the Secretary of State substantial new powers to impose new, ill defined duties on how local authorities do their central business. In my view, and as my noble friend has said, this is contrary to the spirit of localism in which this Government came into office; to the successes, such as they are, that have been achieved under the better value regime; and to getting local authorities to take responsibility for their own procurement and ensure that their procurement practices benefit firms within or close to their local authority area, particularly small firms. On local authority procurement, local authorities are much better at ensuring that small companies have a share of the cake, compared with central government, its agencies or large private firms.
My Amendments 35E and 35T exempt authorities that are already under a better value regime from the effect of both clauses. In some ways, it might be tidier to delete these two clauses entirely. They certainly do not seem to enhance local government or play to the localism agenda. When the Government first came in, not only did they bring in the Localism Act, they took some of the more directional requirements out of the previous best value regime, which had been there under the previous Government—quite rightly, in most cases. We need to recognise that there is a demand for decisions to be taken much closer to where they will have an impact, for local authorities to have a wider responsibility for their local economies and, therefore, for the procurement practices and outcomes under local authorities to reflect the needs and the economic structure of their areas.
Some of the provisions in these clauses suggest a uniformity under the regulations, as in Clause 38(5), for example, which would lay down very precisely how local authorities went about their business. The alternative must be for central government, perhaps, to offer within the best value regime or equivalent more substantial guidance to local authorities. The LGA is already providing substantial guidance to local authorities. However, these new clauses suggest a degree of centralisation that local authorities will resent, which will increase the bureaucracy and red tape on local authorities in an already centralised England—the most centralised country in Europe. We are proposing to ensure that one of the main duties of local authorities would, in effect, be run on what, in the olden days, we might have called the Napoleonic method of laying down centrally the way that local and regional government operate.
This is unnecessary. It may well be that a little more guidance from the centre may be helpful, but to lay that down in law and then, in Clause 39, to provide for a new and draconian inspection of how local authorities are carrying out their duties, is well over the top. It is also contrary to the way in which the Government came in and to the localism agenda, to which we are all supposed to be committed.
Education: Academy Chains
Lord Whitty Excerpts(10 years, 11 months ago)
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Lord Whitty (Lab)
In replying to the Question, the Minister was trying to be very reassuring. Does that reassurance extend to a circumstance where a charity or an academy chain, having taken over the running of a school, then decides to dispose of property attached to it? Do the proceeds from that property go back to the school or do they accrue to the academy chain or charity?
Lord Nash
The noble Lord asks a very good question. In just about every case—if I can find other cases that are relevant to this answer, I will identify them for him—the land stays with the local authority, with a 125-year lease to the academy, so the circumstances that the noble Lord refers to are unlikely to apply. Certainly, nothing like what he mentioned could possibly happen without the consent of the Secretary of State.
Education Bill
Lord Whitty Excerpts(13 years, 6 months ago)
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Lord Whitty
My Lords, I am grateful at this late stage to be following two such good speeches, because I have a great deal of sympathy with what the noble Lord, Lord Willis, and the noble Baroness, Lady Flather, have said.
The Minister may recall from the debate on the Academies Act that I am somewhat opposed to the general direction of government educational policy—in particular the writing out of local authorities from their oversight of education. That is not to say that I believe that local authorities did a fantastic job, but I do believe that that is the point where there is democratic and community oversight of what is happening to our future generations. In particular, it is the failsafe and the default protection of the kind of kids to which the noble Lord, Lord Willis, was referring, and the protection from the kind of community segregation to which the noble Baroness, Lady Flather, was referring. Indeed, I have another example. In terms of educational attainment, the schools of Northern Ireland are actually pretty good; in terms of their contribution to community cohesion, they are absolutely a cause of many of the problems of the last 100 years. Some of the roads we are going down in terms of the autonomy of schools’ decisions on admission policy are moving in that direction. It may not be dramatic but it is the logical conclusion.
That does mean that I have severe hesitations about the principle of academies opting out of local authority oversight. I did with the last Government, I do with this Government. I have retreated to what is probably a more defensible line on that: I recognise academies are going to happen. However, I am still not clear whether the Government’s policy is for a significant number of academies with the resources and protection and so on that could lead to a two-tier structure—which is what I was worried about during the Academies Bill—or whether their aim is that every school should be an academy and therefore that every school should have opted out from local authority control. The consequences of that objective seem to be in the area of lack of community cohesion, serious segregation by catchment area and by admissions policy, and a downgrading of the support functions in relation to special needs and to other functions that are essential for the more disadvantaged pupils.
On academies, the Minister referred to a “critical role” for local authorities, but in practice he is writing out any significant role for local authorities from this whole approach, and that I still deplore. Instead we are getting a system in the name of devolution and of localism but which is actually about centralisation—centralisation of funding and to some extent centralisation of control of what goes into schools—by and large not to independent regulators or independent bodies but to the Secretary of State. That is extremely dangerous and probably ultimately unworkable. The Government should rethink and redress the balance in favour of a strong local authority participation.
I said I had retreated a bit. My main complaint tonight is actually about free schools. Free schools are taking even the Government’s philosophy one stage too far. An article in the Observer at the weekend indicated exactly those areas where free schools were going to be established. They were in areas of very high average income and very articulate parents and they are likely to take resources and intake away from primary and secondary schools in their area. I asked a Written Question of the Minister the other week about catchment areas. He referred me to a website—there used to be a time when you were not allowed to refer to websites but now you are. I fought my way through all the websites to the final guidance, which was pretty uninformative but said effectively that the school could decide on its catchment area. I am aware of some propositions for free schools that refer to primary school feeder schools and they have excluded the most deprived primary schools from that definition of their catchment area. That is a very dangerous proposition and one on which the local authority ought to be in a position to intervene, even if we allow the principle of free schools. I am very unhappy about the free schools provision.
I will not say more about that now but I will no doubt return to it and indeed to the consultation process on academies. Noble Lords who are veterans of these debates will know—the noble Baroness, Lady Walmsley, in particular—that it took us some time to get any recognition of consultation procedures in the Academies Act. I do not think that the changes in Clause 55 of this Bill take us much further down the line but we need to tighten that up as well and I will return to it.
I wish briefly to make two other points. My noble friend Lord Puttnam has said quite a lot about the GTC. I find it very odd that in this country the one profession that guarantees, or does not guarantee, the future generation does not have a professional register or inculcate professional standards and, for example, allows for free schools not to employ qualified teachers. That is a downgrading of the teaching profession, whereas the lesson of the past few years is that we must upgrade the whole status of the profession in terms of competence.
My final point relates not to teachers but to the rest of the staff. The abolition of the support staff negotiating body seems to be an unnecessary act of spite. The body had not got round to setting standards in this area but it recognised that there was a real problem regarding those who support, and provide increasingly important support for, the teaching staff. One danger of the autonomy of schools is that, with the abolition of that body and with the freedoms that we are giving academies, those schools will be able to cream off the best teachers, paying them the better salaries and offering them the better terms and conditions. At the same time, they will be able to pay the lowest salaries and offer the worst terms and conditions to the support staff. That is not a recipe for schools to operate well; nor is it a recipe for social cohesion. The Government, who speak a lot about localism, social cohesion, good society and the big society, need to consider the long-term implications of measures such as this, and I hope that at various points during the passage of the Bill I shall be able to point that out again to the Minister.
Academies Bill [HL]
Lord Whitty Excerpts(14 years, 5 months ago)
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Lord Whitty
“(1A) Before making an application for an Academy order, the governing body shall consult relevant parties on whether to make such an application.
(1B) The Secretary of State shall issue guidance as to how governing bodies should conduct such a consultation with parents, pupils, teaching and non-teaching staff and their representatives, neighbouring schools and the local authority and such other parties as he may think appropriate; such guidance would also specify the information that should be made available to consultees in relation to the proposed arrangements for Academy status.”
Lord Whitty
My Lords, I think we have just seen the need for the Government to listen. Amendment 3 is about consultation on this whole process. It does not seek to reopen the whole issue of the strategy behind this Bill—noble Lords will know there are different opinions in this House. However, it does bring home the need for consultation. This group of amendments relates to the conversion of maintained schools into academies and the next group relates to consultation on additional schools, as the Government are now calling free schools.
We all recognise that the transformation of a maintained school into an academy is a momentous decision for the school—for the pupils, for the parents, for neighbouring schools and for the whole community. Yet originally we had a Bill that had no provision whatsoever for consultation with any of them. I acknowledge that the Minister has listened to some degree and that he came forward on Report with an amendment, which is now Clause 5, which deals with consultation.
I have to return to this as Clause 5 is deeply flawed. It is seriously flawed in three places and has a minor flaw in a fourth. First, the clause places all responsibility on the school governing body and none on the Secretary of State. Secondly, it makes no attempt to define those who must be subject to the consultation and refers simply to those whom “they think appropriate”, as subsection (1) states. Incidentally, the minor flaw is that there must be some slipping up in educational standards in either the Department for Education or the parliamentary counsel as in my young day “governing body” was actually singular and would not be referred to as “they”. No doubt that can be sorted out in another place.
The most important flaw, however, is that Clause 5(3) would allow consultation to be delayed until after the academy order has been granted. Subsection (3) says:
“The consultation may take place before or after an Academy order, or an application for an application for an Academy order, has been made in respect of the school”.
In other words, the governing body could have met and decided to have put in an application without consulting parents, staff or anybody else. The Secretary of State or his officials could have decided to make an order on the basis of that application without having consulted anybody. The terms of that order could have been negotiated, the financial arrangements could have been set up, third parties could have been lined up, all without consultation, and the order could have been issued without consultation. Only at the point just prior to implementation would consultation be required. That seems to me a common-sense reading of the option “or after” in subsection (3).
The Minister was quite helpful on Report. He explained that in practice the governing body would consult and the Government would encourage it to consult. They would issue guidance on consultation, and that guidance would be on the department’s website. I was very glad to hear that and I am sure my colleagues elsewhere were, but why we do not put it in the Bill? That would greatly reassure all the bodies concerned and set a process for every local conversion. Regrettably, I think we know why it is not in the Bill; my noble friends Lord Knight and Lord Hunt referred to the reason earlier. It may have been altered slightly by the last vote, but it is not in the Bill because the business managers are anxious to get this Bill through before the end of July, and any process that was built into statutory requirements would slow down the Government’s aim to get this through so that they could meet their deadline of bringing some academies into being in September.
I have to say to the Minister and his colleagues that it may sometimes be a bit boring and may be a problem for Ministers, but they have to slow down. Frequently, in 13 years of government, those on our side of the House found that they had to slow down and that often it was this House that required us to do that—usually at the behest of Liberal Democrats insisting that they would accept the principle as long as we engaged in widespread consultation. No doubt similar representations are being made these days rather more privately. However, if Ministers really want conversion to academies to happen, and to happen smoothly without too much local controversy, they would be wise to accept my amendments.
The amendments provide that governing bodies should engage in consultation before they apply for academy status; that the Secretary of State would issue guidance to them on whom to consult, how and with what information; and that before agreeing to an academy order, he would have to be satisfied that such consultation had indeed taken place. That is a reduction from what I was looking for on Report and puts a lot of power into the hands of the Secretary of State and the guidance that he would issue. However, separately, the amendments still require the Secretary of State to consult the local authority. That seems to be crucial, as we recognised in the previous debate. The local authority is crucial in these decisions, because the relationship between it and the school will change dramatically if the school converts to an academy. The local authority is responsible for ensuring educational provision in the whole community, not least on special needs, as we have just heard, and because the local authority has responsibility for sustaining educational provision beyond this generation of pupils and parents.
According to the speech the other day by the noble Lord’s colleague, the Secretary of State, to the Local Government Association, he wants local authorities to continue to play a strong and strategic role in the schools system. If that is the case, surely at the very least there should be a provision in the Bill that before a school converts to an academy, the Secretary of State should have consulted the local authority in question.
These amendments would require these issues to be put in the Bill, let the Secretary of State issue the appropriate guidance on the consultation, and let the Bill recognise the crucial role of the local authority. These would not derail the process unless it was being rushed. I advise the Minister to accept the amendments or indicate that in another place he will ensure something similar is put in place. I beg to move.
Baroness Perry of Southwark
My Lords, I am surprised and sad that the amendment has come back at Third Reading in this form. Like many other noble Lords, I have engaged in a lot of discussions with a lot of schools that have for some weeks been engaged in the process of moving to academy status. The normal procedure that they have described almost universally—with slight variations, although they have all consulted—is that the head of the school first talks the proposal through with the staff to get the feeling from inside the school. What head is going to go ahead with a change to the school’s status such as this without taking her or his staff with them? That scenario is unthinkable. Then there is a lot of discussion between the governing body and the head. After that, the governing body goes out to talk to parents.
Almost all these schools have had meetings with parents to explain what academy status would mean and why they want to move ahead. The church schools have consulted the diocesan board and the church; there have been long discussions and many of the diocesan boards have had extensive consultations with their schools and, in many cases, with each other. There is a huge amount of consultation and it is unthinkable—absolutely unthinkable—that any school, any head teacher, any group of staff or any governing body would want to press ahead in some sort of secretive way without making sure that they were taking the staff, the parents and the local community with them. That is the way schools operate.
Once again, there is an arrogance in this House that we are the only people with good intentions. Just 20 minutes ago we were talking about those excellent governors and our faith in them. Why can we not trust the people who run our schools and education services to behave in a sensible and honourable way? That is how they have always behaved. The schools that I have talked to—I am sure many noble Lords have had the same kinds of conversation—have behaved in that way. To be prescriptive, to write down as a rule that we are consulting only because it is the law, would be alien to the way in which good schools operate—and only good schools will come this way.
I am equally certain that, when we move past the stage of the first Ofsted excellent schools wanting to become academies and move to some schools that may be more questionable, the Secretary of State and the civil servants in the department will closely question them as to the nature of the consultation they have had as part of due diligence. The amendment is unnecessary, arrogant and plain rude to the people in the education service that we all support. I very much hope that the noble Lord will withdraw it.
Lord Whitty
My Lords, I am disappointed by that. I have been reasonable: I have listened to what the Minister has said on previous occasions and have not specified a definitive list. Indeed, the amendment leaves the final definition of the list to the Secretary of State, so I trust the Secretary of State. It would be odd if any consultation excluded the parents, pupils and staff, and I think that the House, and indeed society as a whole, need some reassurance on that.
I, too, had a quick look at the website after the previous stage of the Bill. It gave very little guidance on consultation and virtually none on substantive consultation with the local authority. I am afraid that the relationship with the local authority seems to be the most disastrous aspect of this policy, because sometimes the Government explain their commitment to academies as taking as many schools as possible out of the so-called control of local authorities. However, even if we accept that objective, the relationship with local authorities will be crucial in the future, as they will have to take on board the consequences for other schools in the area of a single school or a significant number of schools becoming academies within the area of their jurisdiction.
I have moved quite considerably towards the Minister in not being prescriptive. I have no doubt that he thinks I could move further, but I also think that he could move further. At the very minimum, he should probably look at Clause 5(3) to see whether the phrase “or after” is unnecessary, as it raises a significant number of fears. If the whole process is gone through with consultation in the terms described by the noble Baroness, Lady Perry—and I am sure that that is true in relation to schools that are already enthusiastic for academy status—future cases will undoubtedly be more controversial with the governing body, the staff, the locality and the local authority. Therefore, enthusiasm for consultation may be somewhat diminished in future and the need to provide guidelines as to how the consultation should take place will be more important.
Even if we assume that in most cases the consultation can take place very early in the process, Clause 5(3) allows it to take place at the very end. That is not consultation; it is presenting an option with all the terms of the agreement and the financing tied up and with a commitment on the curriculum and the governance also tied up. It is then presented to the parents and the public effectively as a fait accompli. It is true that that consultation could still reveal a no response but there is no option for the public, the parents, the pupils, the other schools and the local authority to influence or negotiate a change in the provisions. Therefore, if the Minister is not even prepared to consider that the other place might delete “or after”—and I think that what he said today indicated that he was not—we had better have it on the record that the coalition is now against consultation at the local level.
Lord Whitty
My Lords, if you still allow consultation to take place as “or after” implies in subsection (3), you are not wholeheartedly committed to consultation. I respect everybody’s views, I respect the experience that the noble Baronesses, Lady Perry and Lady Walmsley, have referred to, but it still allows for a sham consultation to take place. I would like to close that door and therefore would like to test the opinion of the House.
Lord Whitty
“(3) In the case of a new (or free) school being granted Academy status, the Secretary of State must—
(a) ensure that a consultation has taken place with appropriate parties;(b) consult the local authority.”
Lord Whitty
My Lords, in view of the Government’s attitude to my previous amendment and of the vote, I shall not move this amendment in favour of Amendment 8.
Baroness Morgan of Drefelin
My Lords, it is my turn to pop up from behind the Dispatch Box. I was very interested to hear the noble Lord, Lord Bates, talk about the philosophical issues in Clause 4; I was equally interested to see the little exchanges going on across his Benches. Of course, we have very important business before us at this Third Reading.
My noble friend Lord Adonis and the noble Lord, Lord Phillips, put their finger on the issue that my amendment is about; that is, the Secretary of State being satisfied that appropriate consultation has been undertaken before an academy is established where there was no school previously. I think that we are all keen to hear what the Minister has to say, as my amendment is an amendment to his government amendment. I know that my noble friend Lady Royall will be pleased that he has listened to her remarks and taken on board concerns voiced around the Chamber about appropriate consultation on the establishment of free schools. There are real concerns and questions, for example, about how the admissions code might work in some very small schools, how schools set up by a group of parents might cater for other parents and how the broad and balanced curriculum might work in them. It is therefore important that questions around consultation are taken seriously. Like my noble friend, I believe it is important that, where there is a need for a new school, we make sure that parents have the opportunity to establish a school with the support of the education community around them and that if they consult appropriately they will not be accused at some later stage of having consulted only a few of their mates and people whom they know are fellow travellers and will simply agree with them.
In the interests of ensuring that taxpayers’ resources are invested in good new schools and that work is done to establish sustainable schools that fill a need, the consultation on the establishment of new free schools should be no less important to the Secretary of State than consultation on the conversion of a maintained school to an academy. I look forward to hearing the Minister set that out on the record. I shall think about his response when it comes to considering whether to press my amendment to his amendment.
Lord Whitty
My Lords, I support Amendment 8 as an amendment to Amendment 7, because it would require the Government in relation to free schools to engage in at least the same degree of consultation as they are required to engage in on conversion.
In a sense, I congratulate the Government on redesignating free schools as “additional schools” because that indicates what they really are. It may not be what the Minister’s PR department would have advised him to call them, but “additional schools” raises the issue of additional resources. At some point in this debate, probably now in another place, he and his colleagues will have to answer the question posed by my noble friend Lord Knight on how the additional schools will be financed.
Lord Hill of Oareford
I am grateful for the comments that have come from all sides of the House about consultation. I am grateful, too, for it being recognised that I have listened to concerns and that the Government have moved a considerable way in reflecting them. As I said previously, that has been in response not only to concerns raised with me by my noble friends Lord Phillips, Lady Williams and Lady Walmsley but also to the point made by the noble Baroness, Lady Royall, last week about wanting to be sure that the requirements for consultation on new academies—free schools—were the same as those for converting schools, which was the focus of our previous amendment. I shall try to provide as much reassurance on that as I can to the noble Baroness, Lady Morgan of Drefelin, as I go along.
The first thing I should do is congratulate the noble Lord, Lord Adonis, on understanding what I think is quite opaque drafting, in certain places, by the parliamentary draftsman. He was spot on in his interpretation of subsection (4), which was the question asked by my noble friend Lady Walmsley. It was designed precisely to capture the situation that she cited as an example that she wanted captured, so I hope I can reassure her that it would meet that.
As for the point raised by my noble friend Lord Phillips, it is fair to say that one of the tests for the approval of a new free school will be for the promoter to show that there is demand and support. Without being able to demonstrate that there is demand and support, without that basic evidence, the proposal would simply not be accepted or endorsed by the Secretary of State. It is not the point that one would need to have reassurance that he would satisfy himself that, if it had not happened, a consultation needed to take place. If the new free school proposal cannot demonstrate parental support, which could be demonstrated, I think, only by consultation, the proposal could not be accepted. That is, in part, the answer to the noble Baroness, Lady Morgan. Before approving a proposal, the Secretary of State would have to see evidence that assured him that there was appropriate demand and support.
Secondly—I know that this concern about free schools was raised by other noble Lords —the Secretary of State has made it clear that he will carry out a fit and proper test of any proposer of a free school and take that extremely seriously. Thirdly—I am happy to put this on the record—we have obviously accepted the argument made by a number of noble Lords that we need to be clear in legislation that the requirement to consult applies equally to new free schools as it does to the converting academies that we discussed at an earlier date. The aim and purpose of these amendments is to achieve precisely that.
Moving on to Amendment 8 in the name of the noble Baroness, Lady Morgan, I find the argument put forward by the noble Lord, Lord Adonis, quite persuasive. I know it is surprising. It is persuasive about the difficulty of these descriptions laying oneself open to legal challenge, so I do not find myself compelled to accept Amendment 8. As for the noble Lord, Lord Knight, if it is acceptable to him, because he made important points, although they were more like Committee stage points and quite a long way from the specific amendments about consultation, perhaps I may follow that up with him afterwards. I am happy to write to him. I am happy to meet him and talk about his points because I agree that they are important points. I hope that that provides the noble Baroness, Lady Morgan, a little more information in the light of which—
Academies Bill [HL]
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The Earl of Listowel
My Lords, I have Amendments 10B and 44B in this group. They are intended to probe the Minister further on how he will monitor the impact of the academies legislation on the distribution of outstanding teachers. However, the Minister said yesterday that he would produce an annual report on the impact of academies. I hope that it may therefore be helpful to him and the House if I do not speak to my amendments and relieve the Minister of the task of replying, unless your Lordships would prefer me to speak.
I support Amendment 6. I spoke yesterday morning with the head teacher of a secondary school in north London who had increased the proportion of his pupils achieving five or more A* to C grades at GCSE from about 30 per cent to about 80 per cent. He said how much he would value a social worker and a child psychotherapist to support his staff. I was grateful to the Minister for having written to me during Committee about the value that he places on the role of Place2Be in supporting the mental health of children and teachers. It is important to encourage schools to reach out for these resources as far as possible. They are under pressure to achieve in league tables. The amendment is necessary to ensure that they get the support that they need.
Lord Whitty
I should point out by way of clarification, and to save the Minister a little time and effort, that Amendment 49 in my name is in this group. In reality, it should not have been in this group; it should have been grouped with Amendment 51. I shall not therefore take any time in speaking to it now and the Minister need take no time in replying. I do not promise to be so helpful in my later interventions.
Lord Hunt of Kings Heath
My Lords, I associate myself with the noble Baroness, Lady Walmsley, on Amendment 6. Academies are subject to the same statutory framework in respect of temporary and permanent exclusions as all other state-funded schools, which is welcome. We know that academies have had higher rates of exclusion than other state-funded schools and it is clear that there would be an impact on neighbouring schools if academies in general excluded more pupils but then did not take excluded pupils from elsewhere in the education area.
There are reasons for this in the current academy scheme, where often highly challenging schools were converted into academies and discipline was frequently a top priority. Where there is a large number of academies, it is important that they take their fair share of excluded pupils.
In government, we established a requirement on all schools, including academies, to participate in behaviour and attendance partnerships that involve other schools and have access to support from other children’s services. This was based on a clear understanding of the potential benefits of collaboration between schools and local authorities in the promotion of good pupil behaviour. I can see nothing in the Bill that links the new academies with a requirement to participate in behaviour partnerships. I hope that the Minister can assure us that academies will continue to do so.
I was very much involved in the establishment of NHS foundation trusts and there are clear parallels with academies. Foundation trusts were set up in the context of a statutory duty of partnership. There was a clear recognition of that in the National Health Service, whatever role different organisations played. NHS foundation trusts had a membership and a governing body, so those institutions were standing on their own two feet more than other parts of the National Health Service. Nevertheless, they were still part of the NHS. A duty was laid on them to work with others. It is a pity in some ways that we do not have a similar understanding that there should be a duty of partnership here. The noble Baroness, Lady Walmsley, raises those issues in her group of amendments and we look forward to a constructive reply from the Minister.
Academies Bill [HL]
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Lord Whitty
“( ) An Academy is a public authority for the purposes of the Human Rights Act 1998 and the Equality Act 2010.”
Lord Whitty
This amendment should be fairly straightforward. In a sense, I am on the same page as the noble Baroness, Lady Walmsley, was at the very beginning of proceedings today. It appears slightly odd that we should propose amendments that require schools to obey the law, but life is more complicated than one would think. The point of my amendment is to clarify that, for the purposes of the Human Rights Act and the Equality Act, academies are regarded as public authorities. This is important in both contexts. The noble Baroness, Lady Walmsley, got an assurance in fairly unequivocal terms on the Human Rights Act, and I should like an equivalent assurance, at least, on the Equality Act. I am proposing this in the hope that the Minister will be disposed, if not to accept the amendment, at least to give me a statement that meets the points of the amendment.
Notwithstanding what was said about governing bodies just before the break—and the Minister and others will know that I am not entirely well disposed towards this Bill in principle—I and, I think, most people in this House, would accept that the majority of governing bodies and managements of academy schools that come through this process will operate within the mainstream of educational approach and activity. Nevertheless, it is possible and, at the edges, probable, that the process of establishing academies—and even more so free schools, which will eventually be subject to the same provisions—can lead to governing bodies that are outside of the mainstream. I put that as delicately as possible. There are particular subsets of parents who have particular views on education; particular faith groups will have views on matters of gender and sexuality that are not the normal approach that would be guaranteed if the organisation were subject to the Equality Act and the Human Rights Act. We have to bear in mind that, whatever safeguards we build in, such minorities could qualify to establish a school under that process. Alternatively, it could be that the management of the school is proved to be so lax that, whatever the ethos of the governing body, it is not properly observed. I should therefore like it clarified that the requirements under the Equality Act and Human Rights Act that apply to public authorities will apply to academies, despite their slightly ambiguous position. If the Minister can give me that assurance, we can move on to the next amendment.
Lord Wallace of Saltaire
My Lords, we are happy to confirm, as I thought that we had in Committee, that the Government accept that academies are public authorities for the purposes of the Human Rights Act 1998. We welcome the noble Lord’s intention of ensuring that; we will, as we said in Committee, ensure that academies are included in Schedule 19 to the Equality Act 2010. As the noble Lord will know, academies as independent educational institutions will be required to comply with all the duties in the Act that apply to schools more generally with respect to non-discrimination, reasonable adjustments for disabilities and the like, including gender issues. Academies are not currently included in Schedule 19, but the schedule will be updated before the duties come into force in 2011 and academies will be included in time for that commencement. Therefore, by the time those duties are implemented, it will be clear that an academy is a public authority for the purposes of the Equality Act.
With that clear reassurance, I hope the noble Lord will feel able to withdraw his amendment.
Lord Whitty
My Lords, I am grateful for that clear assurance. I shall not even pursue the avoidance-of-doubt argument. I shall accept the Minister’s remarks in good faith, and am very grateful for them. I beg leave to withdraw the amendment.
Lord Whitty
“( ) Before making an application for an Academy order, the governing body shall, over a period of at least 6 weeks during term time, consult the following on whether to make the application—
(a) pupils at the school,(b) the parents of pupils of the school,(c) the parents of pupils at any other school from which at least 10% of the pupils have come in the previous 3 years,(d) staff at the school,(e) trade unions representing staff at the school, and(f) the governing body of other schools within its area which might reasonably be considered to be affected by the making of an Academy order.( ) In that consultation, the governing body will make available in writing at least the following information relating to the proposed Academy—
(a) details of the proposed Academy arrangements,(b) details of the proposed governance arrangements including details of the directors of the company which will enter into the Academy, arrangements and details of the composition of the governing body,(c) details of the arrangements for the curriculum, for admissions, for special educational needs, for pupil discipline and exclusion and for complaints,(d) details of any arrangements by which any other person will provide the education the proposed academy including details of the extent to which such arrangements will allow for that other person to make a profit from doing so,(e) details of any additional money which would be available to the school (either as capital or revenue funding) if it became an Academy, (f) details of any additional obligations which fall on the school if it became an Academy, and(g) details of the criteria which the Secretary of State would apply in deciding whether to make the Academy order.The governing body will take all reasonable steps to enable suporters and opponents of the proposal to circulate materials relating to the proposed application for an Academy order to other consultees.”
Lord Whitty
My Lords, in moving Amendment 25, I shall also speak to Amendments 26A and 28 in my name and to Amendment 26 on behalf of my noble friend Lady Royall, which I support. I shall also give some comments on the government amendment and the amendment to that. It is a difficult time of night to come to what I regard as one of the most important aspects of the process of setting up academies that is implied in this Bill. I shall try to be short, but I shall not be as short as all that.
We have had some debates on this matter but I fear that the Government, even with the amendment that they have put down for today, have moved nowhere near as far as is necessary. Whether we are in favour of academies or not, whether in general or in a particular instance, we would all recognise that the conversion of a school that has hitherto been a maintained local authority school into an academy is a momentous event. It is important for the pupils and parents of the school as well as for the staff of the school, which will have a different relationship with the local authority that no longer has oversight and no longer provides most of the services or administrative support. That is particularly important for the smaller schools in this category. It will change that relationship and there will be a different sort of relationship, both in terms of the powers of the governing body and the Secretary of State. After all, although the academies programme is portrayed as being a devolution of power, in reality these schools had previously been governed or overseen by a local authority and are now going to be funded, regulated and to some extent controlled by central government. That is not a move that either of the coalition parties was advocating to the electorate a few months ago—but there we go.
If this Bill goes through in more or less its present form, as undoubtedly it will, there is no current provision in the present draft of the Bill for consultation. I submit that there is a requirement for consultation at two points. There should be a requirement on the governing body proposing the change and a requirement on the Secretary of State in taking a view on that proposition. Neither is in the Bill at present. It is important, therefore, that we lay down requirements for consultation at both points. My first amendment does that in some detail. It may be argued that we do not need that degree of detail, and in normal circumstances I would probably have agreed. However, there is no general proposition coming from the Government that the governing body should consult.
The pupils are important—not only the current pupils and their parents but future pupils and parents. It is the whole community; it is schools that could be affected by the abstraction of one outstanding school from the community into a different form of control that will have an effect on the relative status and indeed, in practice, on the relative funding for that school against other schools in the neighbourhood. This could have profound effects on the town. This is why by and large I am in favour of maintaining local authority oversight rather than bringing in central government.
If we are going down this road, however, there needs at least to have been consultation with the parties that will be desperately affected by it. That consultation needs to set down what the broad provisions of the new arrangements are going to be. What will the governance of the school be? What will the changes in the curriculum be, broadly speaking? What other parties might be involved in the provision of education to the children of the neighbourhood? What financial provisions are there going to be, and what are the new obligations on the school?
My amendment sets all that out. It is conceivable to argue that that should be in a code or in secondary regulations rather than in the Bill. I would normally accept that argument, but only once the Government had come to the position of saying that the primary requirement for consultation is laid down in the Bill itself.
It is also important that the Secretary of State has some obligations in this area as well as the governing body. The Secretary of State is making the final decision. He is drawing up one side of the agreement both on funding and on the other provisions that will come in the charter for the school. It is therefore important that we have a Secretary of State able to consult independently with the major parties, particularly with the local authority.
My second amendment relates to the role of the local authority. Even those local authorities that are by and large in favour of the academies programme need to have the ability to tell the Secretary of State what the implications of this will be for education provision throughout their area of jurisdiction. If an outstanding school in a town is being taken out of local authority oversight, the local authority needs to have the ability directly to tell the Secretary of State or his officials what the effect of that will be. We therefore need to have a secondary level—or possibly a more important level—of consultation about who the Secretary of State should speak to.
I have stripped that part of my amendments down to the absolute minimum. I do not list anyone else except the local authority. I expect the local authority to have taken into account both the consultation that the governing body will have conducted and its normal relations with parents and providers within the local authority area. If localism and devolution mean anything, the views of a local authority that is losing an outstanding school must be taken into account before the Secretary of State can reasonably sign off on that academy order.
My amendments, taken together with Amendment 28, which deals with the Secretary of State setting out the criteria by which he has judged whether the order should be issued, would give all the parties to the agreement—all the parties to the school, if you like—the opportunity to give their views as well as an understanding of what is involved and what changes will affect their children and their neighbourhood, along with a balanced view to be taken by the governing body in the first instance and by the Secretary of State. Without specifically providing that the Secretary of State should consult local authorities, that relationship breaks down and this whole provision begins to look as if it is likely to lead to conflict rather than to a smooth change.
Everyone in this Chamber knows that I am not particularly in favour of the process, but if we are going to have it, we need to do it in a way that ends up with the maximum possibility of co-operation between all those concerned. To do that, you need consultation up front before the final decision is taken.
I fear that the Bill does not do this. We need to ask why. I suspect that the good intentions of the people in the education team—the Secretary of State, the noble Lord and others—mean that they would, in slightly different circumstances, have written these provisions into the Bill. The problem is that the Secretary of State said, “All this has to be started by September. We have to write to several thousand schools, get their letters in and decide by September”. That timetable is complete nonsense. It has left the Government very exposed. I am sorry for them—I am sorry for the Minister that he has to defend it—but it is not sensible. If we want in two or three years’ time to have a large number of academy schools without conflict and without outstanding issues still to be resolved and blamed on the Secretary of State, let us have that consultation and engagement up front. If the Secretary of State should somehow back off the September date—I promise not to make a big thing of it—we would have plenty of time to sort these things out. I beg the noble Lord to talk to his colleague to see whether we can go back a bit in the light of arguments that have been made in this Chamber and elsewhere; indeed, I suspect that the Secretary of State will hear similar arguments in another place.
Lord Wallace of Saltaire
My Lords, the noble Lord is in the 15th minute of a speech on Report, which is a little long.
Lord Whitty
I accept that it is a little long, although I did warn the House, but it is actually only the 12th minute and this is an education Bill. I beg to move.
Baroness Walmsley
My Lords, in his Amendment 25 the noble Lord, Lord Whitty, replicates probing amendments that were tabled by at least three Members of this House in Committee and about which we had long discussions. As a result, the Government have come back with a very sensible amendment, accepting our feeling that we should insist that schools consult the most appropriate people. The words,
“such persons as they think appropriate”,
are particularly right in the light of what I have just heard from the noble Lord, Lord Whitty. He suggested that we should list the future pupils of a school as being appropriate to consult. How far in the future are we talking about? What about children in the womb or the parents of children who may at some stage go to that school but who may have moved 50 miles away by the time the child is born? That is nonsense. To list the various organisations and groups of people who should be consulted is the sort of thing that the noble Lord’s own Front Bench resisted on many occasions.
Lord Whitty
As a matter of clarification, does the noble Lord not accept the amendment to his amendment tabled by the noble Baroness, Lady Walmsley?
Lord Hill of Oareford
The amendment arose out of our debate about concerns relating to the potentially large number of converting schools. With the amendment that I have tabled in response to the point made by my noble friend, I hope that we have met the concerns that were raised about the impact of free schools. A free school, which is going to have to demonstrate parental support, will, by definition, have had to carry out a large amount of consultation.
Lord Whitty
My Lords, I thank noble Lords for this interesting debate. The Minister’s position appears to be that his Amendment 30 stands. He has not told us whether he is accepting the noble Baroness’s Amendment 31, which would make his amendment slightly more acceptable with regard to the governing body’s responsibilities. I am being told that he has quite clearly rejected it.
Baroness Walmsley
My understanding, as the person who spoke to Amendment 31, is that my noble friend has said that he does not wish to accept it. My view is that it is desirable but not essential and I shall not be moving it.
Lord Whitty
That clarifies that matter, and it underlines my position in one sense. I do not believe that the Minister has gone far enough to persuade us not to pursue this matter, in that his amendment does not go far enough. It allows for consultation to take place only right at the end of the process, whatever is on his website in terms of guidance, which is no doubt desirable but not statutory or regulatorily required. It does not cover the Secretary of State’s responsibilities and nor, as the noble Lord, Lord Phillips, said, does it explicitly cover the situation relating to free schools. Therefore, it is deficient, and I ask the Minister to consider coming forward at Third Reading with a more comprehensive amendment on consultation. The rules of procedure do not allow him to answer that but it seems to me that I ought to allow him the opportunity so to do.
I shall not press my Amendment 25 on the grounds that to some extent I accept that it is too prescriptive. I think that my Amendment 28, which would require discussion with the local authority, could be taken care of by the Minister coming back with a more comprehensive amendment. My noble friend Lady Royall will no doubt decide whether to move Amendment 26, which is not as prescriptive but does deal with the central issues of timing and widespread consultation.
At this time of night I am not going to win a vote, although I consider that I have won the argument. I think that the Minister needs at least the flexibility to consider everything that has been said and to come back with a better amendment at Third Reading—one which does not include lists of people but which allows some flexibility in the process and clearly imposes on both the Secretary of State and the governing body a degree of consultation. I hope that he will hear what I say in that regard. In the mean time, I beg leave to withdraw the amendment.
Lord Whitty
“In section 237 (orders: supplementary) after subsection (3) insert—
(3A) An order under section 233(2)(d) or 234(2)(b) may also make provision by reference to actions taken or to be taken pursuant to Academy arrangements.
(3B) An order under section 233(2)(d) or 234(2)(b) or (4)(b) shall be formulated so as to apply to support staff employed to work at Academies with the same effect as it applies to staff employed to work in maintained schools.”
In section 238(3) (guidance) after paragraph (b) insert—
“(c) the governing body and proprietor of an Academy”.In section 240(3)(a) (school support staff) at end insert “or is employed under a contract of employment providing for the person to work wholly or mainly at an Academy in England”.
In section 241 (general interpretation) after “Chapter—” insert—
““academy” means an Academy within the meaning of the Academies Act 2010,
“Academy arrangements” means Academy arrangements within the meaning of the Academies Act 2010.””
Lord Whitty
My Lords, it is a bit of a forlorn hope that I can capture the Chamber’s attention at this time of night for a group of people who have not been mentioned at any other point during today, although they were mentioned at an earlier stage by the noble Baroness, Lady Sharp. I am very much on the same wavelength as her.
Among the groups that my amendment on consultation would cover are the teaching staff in general and teaching support staff in particular. This has been an area of expansion of employment in schools—in old jobs such as school secretaries and wider management roles, and in new jobs such as classroom assistants, paraprofessionals and other specialists. Because they are a relatively recent phenomenon, the terms and conditions under which such staff are employed are variable and are not on the same basis as other groups of staff within schools and local authorities.
Local authorities of all political persuasions, the LGA and the unions got together over the past three years to establish the support staff negotiating body and establish a national framework for the terms and conditions of such staff. This has proved beneficial to the management of schools which previously had found difficulty in having to manage individuals under separate terms. In some cases, there were serious conflicts.
This is not just a trade union point; it is a point about how smoothly schools can be managed and how we can avoid conflict in those schools. The problem of when academies are created under the Bill is that without consultation and the normal processes, public servants will be transferred into what will, in effect, be the private sector in terms of the employers they have to deal with. There would be an element of stability in that process if academies were to remain in the support staff framework. It is true that existing academies do not have to be in that framework, although they can opt to be, but it would be helpful to the management of schools which will face all sorts of more complex matters of self-management, once they become academies, if they were to remain or be assumed to remain within that structure.
When the noble Baroness, Lady Sharp, raised this at an earlier stage, she was told by the Minister that it was not deemed appropriate since the market would determine the rates—that would be the situation with teachers and what was good for teachers must be good for all other staff. Actually, it is the opposite situation. Academies will compete for teaching staff who are specialists or good teachers or teachers in subjects where teachers are scarce and thereby improve their conditions above the norm. In the area of support staff, what is likely to happen is that they will undermine what has previously been the rate in the continuing maintained schools in the local authority area, and will provide pay and conditions that are worse than they were prior to conversion to academy status. That will cause unnecessary conflicts between the management of the schools, the staff and in most cases their unions.
This amendment would provide an element of stability. I hope that the Minister will consider the implications as we go forward with the Bill. I beg to move.
Baroness Morgan of Drefelin
My Lords, I am delighted to support my noble friend's amendment. It may be late, but the contribution that support staff make to our country’s schools is worthy of significant attention. In Committee, I and the noble Baroness, Lady Sharp, reminded noble Lords of the important role of support staff, and I am delighted to support my noble friend's analysis of the challenges that they face with a major expansion of the academies programme. This amendment provides a framework that is markedly different from the national negotiating body that the Minister referred to in Committee. When one looks at the contribution that the 123,000 new classroom assistants have made across the school system, it is important that we take all possible steps to maintain stability in the workforce. A framework such as this would contribute to that. In the past, as the noble Baroness, Lady Sharp, eloquently said, support staff have been undervalued, and we should put in the work to create a new school support staff negotiating body. A lot of work and thought has gone into defining the roles and contribution that the staff make, and this could be a great support, particularly to small academies such as the primary academies that some noble Lords have been concerned to promote. I hope that the Minister will support this approach.
Lord Whitty
My Lords, I am not surprised but am gratified that the Minister did not read out his entire brief. However, he did get us past midnight and I congratulate him on that. It is the first time in this Parliament that I have been in the Chamber at this hour.
The Minister is right to say that the pay is not brilliant in the sector at present, but the framework that was agreed across the country has made the situation much more stable both for staff and for their employers. That was reflected in the Apprenticeships, Skills, Children and Learning Act 2009, which of course has a statutory base and came into force after the previous Government’s academies programme had started. Therefore, we are now faced with a framework which has a statutory base, as well as being a voluntary agreement. As my noble friend Lady Morgan said, it does not precisely lay down the pay rates but it gives a framework within which employers can operate. I should have thought that that would be useful, as my noble friend also said, particularly if smaller academies come through the process in the numbers that the Government hope for.
I would have hoped that the Government would look more favourably on my proposal but, for the moment, and at two minutes past midnight, I beg leave to withdraw the amendment.
Academies Bill [HL]
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Lord Bew
My Lords, I shall address some of the issues raised by the noble Lord, Lord Phillips of Sudbury, in his Amendment 4. Much of this is an issue of context. I was struck by the example of the case in Sudbury, which he gave in his speech at Second Reading. It is of concern that what we are doing with this new second phase of the academies project will leave certain schools and communities behind.
However, I want to suggest an angle of vision on this which I hope will be helpful in a small way to the Committee. If you look at a very traditional elitist system such as that which prevails in Northern Ireland—the grammar school system—which is different markedly from the system that is being discussed, although there is a small grammar school element to it, you will see that the results achieved at A-level and GCE are by far the best in the United Kingdom. At the bottom, the results are not so good—but nor are they now so divergent from those in England. Girls are actually doing better in Northern Ireland. Boys in Northern Ireland are doing worse than in England. However, those results tell you something: the way that our system has evolved over a generation or more is that we now accept that Northern Ireland will for ever lead the academic attainment lists at the highest level in the United Kingdom unless there are changes in policies. They tell you that at the bottom level this elitist system is not as bad in relation to England as we once thought it was. It is actually very close indeed. It is bad to be at the bottom level in England and in Northern Ireland.
The point I am trying to make is that the Northern Irish grammar school system, for all its many joys, was not formed in a political culture whereby a Minister for Education talked, as he was talking today, about using the state as a weapon for equity. In other words, the context is enormously important. It is important that the context is right when we discuss these questions and that the policy of the Government is directed towards greater equality of opportunity, which seems to be, as the noble Lord, Lord Phillips, conceded, where the Minister is coming from. He may not be quite the Marxist-Leninist that the noble Lord, Lord Greaves, talked about, but none the less that seems to be the approach. The status quo is leaving people behind. We already have a segregated system. The status quo is already having negative effects, and the noble Lord, Lord Phillips, whose point about unintended consequences I accept, is rightly concerned that they will become more marked as side effects of this new system.
Baroness Walmsley
My Lords, if I may—I have some amendments in this group. I should like to speak to Amendments 98, 136 and 177. I also intend to speak to Amendment 137 along with Amendment 98, as they go together. I apologise that with all the toing and froing with the groupings this morning, I did not notice that Amendment 137 had not been included in this group. However, I believe that I am able to speak to it all the same.
The purpose of Amendments 98 and 137 is to probe the application of the school governance procedures regulations 2003 to a resolution by the school governors to apply for academy status. The current regulations provide for special procedures for important governing body decisions about the future of a school—particularly ones such as this, which would lead to a decision by the local authority to discontinue supporting the school. The special procedures currently include a requirement that the decision cannot be delegated to a committee or individual, and the chair cannot direct that a period of notice shorter than seven days be given for a governing body meeting. Indeed, in certain cases, a second governing body meeting must be held within 28 days to confirm the original decision.
Therefore, can the Minister confirm that a decision to apply for academy status cannot be delegated to an individual governor or even a small committee of governors? Will the regulations require the local authority or parents to be informed of the date when the governing body proposes to make a decision? Should not the regulations be amended to this end if they do not already do so?
Amendment 136 is a different way of dealing with the same matter. Clause 5(9) disapplies current legislation. Conversely, if we remove subsection (9), as Amendment 136 does, the current situation regarding consultation, safeguards and time periods and so on regarding who can make the decisions remains.
Amendment 177 would insert a new clause that would extend to academies a current duty on the governing bodies of maintained schools in England to promote community cohesion in the discharging of their functions. The noble Baroness, Lady Royall, touched on this in the earlier debate on consultation. I well recall our debates during the passage of the Education and Inspections Act 2006, which introduced a duty on all maintained schools in England to promote community cohesion and on Ofsted to report on the contributions that they make in this area. Both these duties have now commenced.
Governing bodies of existing new Labour academies are not subject to the same duty to promote community cohesion as applies to maintained schools, despite our protestations, as I recall, when the Bill went through your Lordships’ House, yet from September 2008 their contribution to community cohesion has been reported on by Ofsted. I think it is vital that the new academies are also required to promote community cohesion, especially where they are located in areas where the community is very diverse. This is particularly important given the concerns that academies may increase social division and inequality, rather than reduce them, which of course is the intention of the programme. That is not how we want academies to be. They should be part of, and serve, the local community.
On the question of new 16 to 19 providers, mentioned by the noble Baroness on the opposition Benches, I think that if an academy extends the age range which it intends to serve beyond that which it had when it first applied to be an academy, there may very well be a case for having to go back to the Secretary of State to renegotiate the terms of the academy agreement. Can the Minister let me know whether that is the Government’s intention? It would be a major change in the academy’s provision and the original consultations would no longer be legitimate.
Lord Whitty
My Lords, I, too, have tabled amendments in this group—Amendments 116, 117, 119 and 129. Since this is the first time that I have spoken on this Bill, I welcome and congratulate the Minister on his position and the way in which he has hitherto dealt with the Bill. However, I cannot give the same welcome to the Bill itself. He needs to know that I have fairly fundamental objections to it, which may appear from time to time. It may have a rougher ride as we go forward.
It is true that I also had some reservations about the previous Government’s academies programme, contrary to the position of the Front Bench and other colleagues. However, it was very different—it was different in execution, although some would say that it was not that different in ambition. In execution, the Labour Government, with their fewer than 300 academies, recognised that there were failing schools, or at least schools that were underperforming in educational terms, and that there were areas of social deprivation, which was detrimentally affecting educational attainment. The Government used the academies as a way of compensating or intervening at the extreme end of special measures. That I can understand. In a sense, it was a comment on the failure of local authorities and the governing bodies that central government had to take them over. In general, I believe that the education of a community’s children ought to be the responsibility of the local authority elected for that community. It is only in very specialised and specialist cases that you would override that.
That is a political and an educational principle. It is an educational principle for reasons to which the noble Lord, Lord Phillips, has just referred. A change in the status and the relative resources and attention given to one school will have a knock-on effect on other schools. Sometimes it might be beneficial, but it will undoubtedly have a knock-on effect.
The record on Labour academies is mixed. Some have been very successful; some have improved, though it could be argued that they could have been improved by less drastic interventions; and some have failed or nearly failed. The case is not yet fully proven. To take away from local authorities the responsibility for educating their populations, which they have had for well over a century, is a very drastic move. In this short Bill we are changing the provision of education in this country.
This depends on initiatives being taken by the school and on the attitude of the Secretary of State to the application of the school. However, the ambition has been clearly laid out by the Minister and the Secretary of State. They want a large number of schools to opt out of local authority oversight. I say “oversight” and not “control” because local authorities have not managed schools for many years. They have supported schools and given them administrative support, help in specialist matters and special needs, and help in many other areas, but they have not managed the schools in the way which is sometimes implied by the criticism of the current system.
The Bill is taking a big step to remove the relationship between schools and the local authority. I appreciate that I am not going to be able to persuade the Government or the coalition—or at least most of the coalition—that this is the wrong way to go. But if we are to go down that road, it is essential to reassert the role of the local authority. We had a debate just before the break about consultation. I take some of the points from my noble friend Lord Adonis and others that to prescribe exact forms of consultation in primary legislation can lead you down difficult paths and that perhaps it is better covered by a code, guidance or, certainly, practice by the Secretary of State and those who are promoting academies and free schools.
The one bit of consultation that I do not believe you can escape is consultation with the local authority. The local authority might in some cases agree that it would be a good thing to have an academy. It would certainly have views on it and it would certainly have views that are informed by the impact on the rest of education in the area of its oversight. My first amendment is my ideal. Amendment 116 says that the local authorities should be consulted and should agree the proposals.
I appreciate that that is fairly close to cloud-cuckoo land, given the Government's intentions. In any case, if there was a disagreement between the local authorities and the Secretary of State, you would have to build in an arbitration process. I have therefore given the Government an alternative, which simply states that there is an obligation to consult the local authority.
Personally, I think that if that is not inserted in some form into the Bill, it will be greatly flawed. I suspect that it will make for a difficult ride in another place if local authorities are not written in, so I therefore strongly advise the Government that if they are to continue to go down that road, they ought at least to recognise the special role of local authorities in that respect.
I also take the point made by the noble and learned Lord, Lord Mackay, before the break, but perhaps the obligation to consult ought to be not on the party proposing the school but on the Secretary of State him or herself. At the end of the day, the Secretary of State will have to make the judgment and explain to Parliament whether an effective consultation has taken place, so I place the responsibility not on the proposers but on the Secretary of State. That makes sense.
My Amendment 119 goes further to state—in a sense, with the same motivation as the noble Lord, Lord Phillips—that there should be an assessment of the effect of taking a prospective academy out of local authority oversight on the rest of the educational provision in the area. Where it differs from the intention of the noble Lord, Lord Phillips, and probably therefore avoids the objection of my noble friend Lord Adonis, is that it simply states that there should be an assessment. That assessment, or at least its conclusions, should probably be available publicly—although the amendment does not state that—but it still leaves the final judgment to the Secretary of State, whereas the amendments of the noble Lord, Lord Phillips, would prescribe something that is difficult to define, as my noble friend said. Nevertheless, I think that the noble Lord and I are both on the same page here: before we move to approve an academy, an assessment needs to have been made as to the effect that will have on the total educational provision in the area.
I hope that the Government take some notice of the amendment. Personally, I find it very difficult that in the name of removing the burdens of red tape from head teachers and governing bodies, we move from a system of local authority oversight to one of centralised funding, centrally regulated. The red tape which has undoubtedly been imposed on the teaching profession by successive Governments over the past two or three decades has largely emanated from central government and their agencies, not from local government. The relationship with local government has been, by and large, constructive. We ought to maintain that. Even if we are going for change which some local authorities may approve of, there must be a vital role for local authorities in that process.
My final amendment simply gives some flexibility on timescale, so I will not go into it in great detail. The key point here is that local authorities must be present under the Bill to be consulted, engaged and involved, reflecting the impact of a decision on one school on the totality of education in their area.
Lord Whitty
I owe the noble Lord, Lord Baker, at least a brief response since he took us back not only to 1988 but to the 1950s. I read his article about technical colleges and I have some sympathy with it because, for the record, I am strongly in favour of local authorities. But that does not mean that I am against choice and diversity of provision. I do not think that the local authority has to provide everything or that everybody who works at the local authority school has to be employed by the local authority. That is not my position. My position is that the local authority should have oversight. The local authority is responsible for the community and the future of that community. However, the amendment that the noble Lords, Lord Phillips and Lord Greaves, and I are proposing is much more modest. It simply says that the local authority should be consulted, and that these things should be taken into account.
Despite a wide-ranging difference of ideological approach between the noble Lord, Lord Baker, and me, the actual answer to these amendments is relatively restricted. It emphasises the importance of local authorities. Unless the Bill keeps in mind that local authorities are big players in this game, there will be conflict and difficulties.
The other point that I would make to the noble Lord, Lord Baker is that much of what he was describing is not what is being proposed by this Government but what was being enacted by the previous Government. In other words, they were seeing schools that were failing and areas where the local authority was performing badly overall. They introduced academies into that context. I do not totally agree with it, but I sympathise and understand the motivation for that. But what the Minister and his boss Michael Gove are proposing is almost the opposite. They are saying that all schools can apply, but they will take the outstanding ones first. They will automatically take the outstanding schools away from the role of the local authority and leave it to manage the less good schools.
That is an inversion of how the noble Lord, Lord Baker, described the motivation for establishing academies. To some extent, it is an inversion of what the previous Government were attempting to do with the academies that they established. That is the part of the strategy I object to. But I repeat that our amendment is much more modest. I hope that the Minister can at least accept one of our amendments.
Lord Bates
My Lords, we should be grateful to the noble Lord, Lord Phillips, for tabling Amendment 4 and giving us the opportunity to look again at Clause 1(6)(d), because there is a potential difficulty for the Government down the line. We intend to provide freedom for people to establish schools, yet paragraph (d) says that,
“the school provides education for pupils who are wholly or mainly drawn from the area in which the school is situated”.
The noble Lord, Lord Baker, has just spoken. Of course, the city technology colleges were successful because they did not have that restriction. There was nothing to say that they had to “wholly or mainly” draw pupils from the area of the school. Therefore, they could draw them from a wider area, which was how they became beacon schools.
From my reading, Swedish schools are not subject to the same restrictions in terms of having to draw from very narrow boundaries. There is a potential risk, particularly in the primary sector as distinct from the secondary sector, of deleterious effects on neighbouring schools. I ask my noble friend to look again at the wording of that clause and see whether “wholly or mainly” needs to be included or whether a general statement about pupils being drawn from the area in which the school is situated would suffice.
Lord Hill of Oareford
We will have one colour for the coalition. I thought that the letter had been made available in the Library. If it has not, I will make sure that it is. I will still give my noble friend his own special copy.
It is our view that all schools should be free to apply to become academies, subject to the decision of the governing body and its foundation where appropriate. That does not mean that all schools will be approved to become academies. Some schools may not meet the criteria of acceptability or show sufficient evidence that they will be able to deliver an acceptable level of education. Some may not show evidence of enough demand to make them viable. We will consider each case on its merits in the light of the situation in that area.
Amendments 116, 117 and 129 would require the local authority to be consulted about several aspects of the conversion process. I have already set out our view in this respect. We do not want to be in a position where a local authority could veto the process.
Lord Whitty
I gently say to the Minister that, yes, one of my amendments would give local authorities a veto but another would not, and nor would those of the noble Lords, Lord Greaves and Lord Phillips. Consultation is not a veto. Ministers in this Government will find that all sorts of statutes require Ministers to consult before they make a decision. It is a bit irritating. At the end of the day, Ministers can ignore it or override it, but at least they have gone through the process. That is all we are asking for here.
Lord Hill of Oareford
I understand the point that the noble Lord, Lord Whitty, makes. I stand corrected. Amendments 119 and 191 propose an assessment of the educational impact of each academy conversion before it can go ahead, and a pilot process to make similar assessments over several years. Academies are not a new phenomenon. We know that that they have achieved great things over the years. They already work in partnership with other local schools. They make sensible and co-operative arrangements with local children’s services. If we were newly introducing academies, these proposals might well be worth considering very carefully, but we are not. We are, therefore, not convinced that they are necessary.
Amendment 177 would require academies to promote community cohesion. That is obviously, in broad terms, a worthy aim. The question is, how do we see this being achieved? As a condition of grant, an academy is already required by its funding agreement to be at the heart of its community, sharing facilities with other schools and the wider community. Future academies will continue to be under this obligation.
I am mindful that somewhere in these amendments was Amendment 137, tabled by my noble friend Lady Walmsley. She asked about the delegation of decisions to an individual governor. We would not expect governing bodies to delegate decision-making in connection with an application for an order to an individual. We would ensure that our system required governing bodies to forward to us a copy of the minutes of the governing body meeting so that we can be satisfied in that connection.
Amendments 76A and 92A deal with post-16 arrangements in academies. I hope that noble Lords will be reassured to hear that where we are being asked to fund an expansion of post-16 provision in an academy we will require the academy to make a strong case for expansion and to show that other local providers have been consulted, but we are not convinced that such a requirement needs to be in the Bill. Recurrent funding in academies, including for sixth-form provision, is formulated to ensure that academies are no better off and no worse off than maintained schools for the provision of similar services. However, as we know, they receive funding to buy in services from a local authority or another provider where these will no longer be provided free of charge to the school. A cap that prevented academies from receiving funding for these services would leave academies worse off than maintained schools.
In light of the general discussion that we have had about the role of the local authority, I urge all noble Lords to withdraw their amendments.