Academies Bill [HL]

Baroness Morgan of Drefelin Excerpts

Monday 28th June 2010 Lords Chamber

Moved by

[Baroness Morgan of Drefelin]

88: Clause 2, page 2, line 22, leave out paragraphs (a) and (b) and insert—
“(a) for at least three years, and(b) terminable by the Secretary of State giving one year’s written notice”

[Baroness Morgan of Drefelin]

My Lords, the amendments in this group are probing amendments to understand why the Government have chosen the period of seven years for the academy agreement, not six years or eight years, to understand what evidence they have chosen to support that choice and to probe the direction that the agreement flows in. If a new academy is formed through an academy order and a funding agreement for seven years is established, how can such an institution, if it wishes, revert to the maintained sector? Is it a one-way street or a two-way street? What are the safeguards to ensure that an institution is not stuck as an academy if it wants to come back? I hope that the Minister will be able to furnish us with the evidence on this matter. I beg to move.

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

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

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[Lord Hill of Oareford]

My Lords, I start by thanking my noble friend Lady Sharp. She reminded us, in her clear exposition of the history behind the answer to the question put by the noble Baroness, Lady Morgan, about the period of seven years and where it came from. The previous Government followed it and we are doing the same.

[Baroness Morgan of Drefelin]

In terms of the noble Lord’s approach going forward, I ask what evidence has been used to carry on with that timeframe. There is nothing in the impact assessment about timeframes and I would be interested to know what the evidence is.

[Lord Hill of Oareford]

My noble friend Lord Wallace says that the evidence is as good as the evidence the previous Government had. The answer to the question is that, over time, the period has shown itself to demonstrate stability for parents and children because it gives them some certainty. However, in terms of the impact assessment, I can give no better answer than the previous Government themselves had.

We think that reducing the period of notice required for termination would create greater uncertainty. We are not aware of evidence that suggests that a shorter notice period would provide a better solution. However—and this comes back to earlier discussions about the difference between the funding agreement and the grant arrangements—there may well be a case where a new school is created for providing a shorter period for the school to prove itself. That is the reason behind the proposed new grant arrangements. In such a case there would be greater flexibility to allow for more regular review of performance, and then once the school had established itself as what is called a free school, it would be possible, if both parties agree, to move on to the more conventional contractual funding agreement.

Furthermore, it is right that the academy itself is sure of this same stability to make long-term plans and that the Secretary of State, when committing to funding, is confident of the proprietors’ commitment to the academies programme. The amendments would add unfair uncertainty to the academies programme. On the question put by my noble friend Lord Phillips through Amendment 92, I am advised that it is already the case, as he says. The Bill gives no prescription about when the notice to terminate may be given.

Amendment 108 seeks to allow the governing body of any school which has applied for an academy order to withdraw the application at any time up to one week before the conversion date. Until the academy arrangements, including the funding agreement, have been signed by both the academy trust and the Secretary of State, the academy trust is free to withdraw its application for an academy order, even if the order has been made in respect of that school, and in theory that could be right up until just before conversion. An order merely permits the school to enter into an agreement with the Secretary of State; it does not require it. The decision by a school to enter into academy arrangements with the Secretary of State should be taken after due consideration. The academy trust will want to be confident of its decision when it signs the funding agreement or grant letter but, as I say, in theory that could be up until the point before conversion.

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[Lord Hill of Oareford]

On the specific point the right reverend Prelate raised in the question he asked earlier, I can tell him that we shall come later to amendments in regard to religious schools and land issues. Perhaps I may write to him to clarify the precise point.

[Baroness Morgan of Drefelin]

I thank the Minister for his remarks and for putting on record some very helpful information about moving in and out of academy status.

With regard to the seven-year timeframe, given the debates that we have had so far, the main difference between having an academy agreement and having a direct grant payment is the term. I am trying to understand what the Government see as so important about the seven years. Regarding the term of the grant letter, we were advised that the main difference there was the variation of the term. This is an important issue. If the coalition Government had simply carried on everything that we did when we were in government, we would be looking at a very different education Bill now—we would be looking at PSHE and guarantees around one-to-one tuition.

This is about understanding what the Government see as an appropriate term. If it is a new, experimental school that is being funded through a grant letter, then how long is enough—one month, two, three? Does it have to be a year or five years? At what point does it become a stable, going entity? I would be interested to know that, along with what evidence the Government are going to use. If they do not have evidence now, and I understand that there is an experiment unfolding around the free schools, it would be good to understand what criteria are going to be used to look at how well those new funding grants and the terms around them are performing.

I am grateful to the Minister for putting on record those helpful remarks about the transition to and from academy status, and I will read Hansard to understand the implications fully. For now, I beg leave to withdraw the amendment.

Amendment 88 withdrawn.

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Moved by

[Baroness Morgan of Drefelin]

105: Clause 3, page 2, line 38, at end insert—
“( ) An application under subsection (1) shall be in such form and shall contain such particulars as may be prescribed in regulations.”

[Baroness Morgan of Drefelin]

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

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

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

[Baroness Sharp of Guildford]

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

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

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

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

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

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

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[Lord Hill of Oareford]

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

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

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

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

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

[Baroness Morgan of Drefelin]

My Lords, given that the hour is so late and the complexity and importance of the information that the Minister has just shared with us, I will want to read Hansard and think about it. One of my concerns relates slightly to the FOI amendment that is coming later. I am concerned about transparency. The coalition Government have said time and again that there is a strong commitment to transparency. We are dependent on a host of information being posted on the department’s website but, given the number of websites being culled at the moment, I am slightly anxious about it. So I want to think about what the Minister has said this evening. I beg leave to withdraw the amendment.

Amendment 105 withdrawn.

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[Lord Hill of Oareford]

I am grateful to my noble friend Lord Greaves. I listened to his comments with care and he made some extremely interesting points about oversight. I agree that one has to keep that under review as the situation develops. It goes to the heart of the question about the future role of local authorities, which we have touched on previously in Committee. I recognise that the coalition Government have not yet come up with a complete or satisfactory answer on what it should be, other than saying that we are clear that local authorities should have a strong strategic role.

The issue of it being a revolving picture is related fundamentally to my noble friend’s Amendment 160B. Perhaps I may answer his question directly by reference to Baldrick in “Blackadder”: I do not have a cunning plan around how many schools are likely to convert. I know that my noble friend may find that hard to believe, but it is true that our approach to the legislation is to say to schools that they have the opportunity: it is a choice rather than a compulsion. We do not have a clear view of the landscape in five years’ time because the shape of that landscape will be determined by the response to this permissive legislation.

We see this as being an opportunity that we want to give to schools rather than requiring them, or a local authority acting on their behalf, to convert or plan for conversion. Linked with that is the desire to be able to seek academy status quickly. It may indeed be that over time local authorities will develop a new role more akin to commissioning. I think that was the thought behind my noble friend’s amendment and the 2005 White Paper laid out thoughts on how the role of local authorities might develop. As the department and the Government more generally reflect on the proper role of local authorities and how to work with them—

[Baroness Morgan of Drefelin]

I have been listening carefully to the Minister. If the Government do not have a vision for the role of local authorities going forward, would it not be a better idea to take this legislation at a more reflective pace so that people can engage with the coalition Government more proactively and in a considered way? Why are we rushing this? If the noble Lord does not have a picture or an answer, why are we here at 11 pm instead of having more time to think more carefully about the matter and have a proper debate? I do not understand what the rush is.

[Lord Hill of Oareford]

This relates to a debate I had earlier with the noble Baroness, Lady Royall, who asked: why the rush? Our answer to that question is that we know there are schools which appear to be keen to convert and to take advantage of academy freedoms. Our instinct is that, given that information and given the choice between going slow and cracking on with it, and providing answers about the strategic role of local authorities going forward, as I fully accept we must, we incline to the latter view.

I fully recognise the experience of my noble friend Lord Greaves in the proper role of local authorities. I hope that he will contribute to our deliberations on these matters. He said that these amendments are meant to illustrate a point rather than being particularly prescriptive in their intent. I have listened to what he said and will continue to reflect on it. I hope that in the light of that he may feel able to withdraw his amendment.

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[Viscount Eccles]

I stand corrected. That secondary legislation was drafted by the previous Government and I must confess that I had some hope that the coalition Government would see that there had been an error and not implement it. An extremely strong argument has to be made in order to appoint any charitable regulator other than the Charity Commission. In default of that argument, the Charity Commission should be the charitable regulator.

[Baroness Morgan of Drefelin]

My Lords, I have got slightly confused about the groupings. I think that I have a clause stand part in here. Anyway, I shall make a brief contribution to this debate.

The contribution from the noble Lord, Lord Phillips, on the question of charitable status and the automatic exemption proposed in the Bill was so key that I am not sure that I want to add much more. When I read the Bill, it gave me great cause for concern. I sat through much of the proceedings on the Charities Bill as a new Peer and learnt how thoroughly this House can interrogate a piece of legislation. I came to understand the importance of presumption and the role of the regulator in safeguarding the values that the charity brand, if that is the right phrase, has for members of the public. This is a fundamental step to take.

The Department for Children, Schools and Families considered this measure for its last Bill but rejected it on the basis of advice that we received, so we were listening carefully. There were lots of good reasons why academies might want to become charities, but in the end there were not enough good reasons to suggest that all the careful deliberation that this House and the other place went through to achieve that settlement should be thrown out. To carry on the Monty Python link, I would say that this clause is a dead parrot, as it really is dead as a concept. I would be interested to hear the Minister’s response, but I have heard some convincing arguments today for why Clause 8 should not remain in the Bill.

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[Baroness Sharp of Guildford]

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

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

[Baroness Morgan of Drefelin]

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

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

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

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

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

[Lord Hill of Oareford]

I always try to be as helpful to the noble Baroness, Lady Morgan, as I can. I certainly echo what she and my noble friend said about the importance of support staff and the contribution that they make. On this occasion, I fear that I shall not be able to be as supportive as she perhaps would like and as my noble friend might like in substantive terms.

Our view is that the freedom over staff pay and conditions, which has been extended to academies in relation to teaching staff, is an important freedom and it is one of the reasons why schools have wanted academy status. Our view is that if it is good enough for teachers, it is good enough for support staff. I suspect, although I do not know because it was before my time, that at the beginning, when academies were given greater discretion over pay, there may well have been concerns that it would lead to staff at academy schools in some way being done down because they were not part of national agreements. Over time, those fears have not been realised.

There is no reason to believe why the same should not happen as regards school support staff. Academies could use their greater freedom to treat them well and perhaps to treat them better. We believe that those freedoms have been vital to academies’ success. They allow them to make changes to the school, to drive up standards and to employ the best staff. It is one of the core freedoms. On this occasion, I certainly feel that academies ought to be able to have those freedoms in relation to school support staff.