Academies Bill [HL]

Baroness Walmsley Excerpts

Monday 21st June 2010 Lords Chamber

[Lord Hill of Oareford]

I am not sure that I would say to the noble Lord that it would be totally a matter of chance. Fundamental to the Bill are trust and the principle of freedom. Throughout the Bill, we are seeking to be as enabling, permissive and as little prescriptive as possible. That principle would obtain also in our attitude to the question of governance. Our starting point would be that people wanting to set up these schools and exercise these freedoms would have a view as to what the most sensible membership of a governing body would be. The noble Lord will know from his experience that the best kind of governing body has a broadly drawn membership, bringing in expertise and experience from many areas. I am happy to discuss with him outside this debate whether there is anything further I can do.

[Baroness Walmsley]

Notwithstanding that my Amendment 82 in a later group deals with this very matter and I would like to talk about it then, does the Minister not agree that if a school is set up on the demand of, and by the organisation of, a group of parents, it seems a little strange to have only one of them as a governor?

[Lord Hill of Oareford]

I am being helped by noble Lords opposite who know far more about this subject than I yet do, so I am grateful for their prompting. The proposal is that there should be at least one parent governor. In practice, if one were to draw up a list and look at what happens on the ground, one would find that academies tend to have varying numbers of parent governors, often many more than one. That is because academies have worked out for themselves that having those parents involved is a good thing. Parental involvement is a good principle. It is sometimes thought that academies are conspiracies against their local area and against local people, but I have seen no evidence of that whatever. In the academies that I have seen, it has been exactly the opposite. It would be wrong if I have given my noble friend the impression that I consider one parent is correct. The statutory requirement is for at least one, but in practice it would be many more than that. However, we will return to this debate later.

Picking up on that point, it is the Government's view that there should be broad representation on the governing body of academies. That is rightly a matter for academies. We are seeking not to be too prescriptive in setting down what those freedoms should be.

Free schools will have to have a fair and transparent admissions policy, just like other academies. They will have to provide places to pupils of different abilities drawn wholly or mainly from the local area and we would expect parent governors to reflect that intake. The arrangement for the election of parent governors will be set out in the articles of association of the academy company. It will make clear that the election of a parent governor should be by the parents or pupils attending the academy and, once elected, they will be appointed to the governing body of the academy trust.

On Amendment 33, moved by my noble friend Lord Lucas, I first apologise that we have not yet been able to circulate the model funding agreements. I want to do that as soon as possible. We are proposing to be able to circulate specifically the elements that deal with admissions, SEN and exclusions, which I know are of particular concern to many noble Lords. We will do that as soon as we can and I am sorry that we have not been able to do it in time for today.

On the question asked by my noble friend Lord Lucas about intervention powers, the Secretary of State has power to intervene when educational standards are in question, if health and safety is an issue, and where governance, including financial management, is at issue. Of course, parents can complain to the Secretary of State and ask him to intervene.

On the substance of Amendment 33, all academies are managed by an academy trust which, before it can enter the funding agreement with the Secretary of State, must have finalised and lodged at Companies House its governing documents, with the memorandum and articles of association which set out the governance arrangements and the governing body. That prompts me to respond to a question asked by my noble friend Lord Phillips. Because of the technical detail, I feel I should write to him to follow that point up.

In the case of outstanding schools converting, we will discuss and need to agree with the governing body of the converting school who will be responsible for establishing the academy trust and the proposed composition of the board of the governing trust. We envisage that the composition of the governing body of the trust may therefore be very similar to that of the governing body of the converting school. The effect of Amendments 2 and 3 would be to deny teachers, charities and parents the opportunity to set up new schools. It would be wrong to deny them that choice, which the previous Government themselves intended to give them and that the Conservative Party promised in its manifesto and restated in the coalition agreement.

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[Baroness Walmsley]

My Lords, my Amendment 104 is in this group. I am not quite sure why Amendment 3A is in the group—I think that it should have been in a previous one—but the rest of the amendments are all about consultation. I agree with the noble Baroness, Lady Royall, that appropriate consultation, over a sufficient time, leads to good decision-making. The decision that schools have to make about conversion to academy status is terribly important, so I think that they should consult.

I have a few words to say about the amendments tabled by the noble Baronesses, Lady Royall and Lady Morgan. I am not sure why they felt the need to include CRB checks in Amendment 4A. I am sure that the Minister will correct me if I am wrong, but I thought that all those who had dealings with schools had to have CRB checks anyway. Indeed, I know a young teacher who does both paid and voluntary work in a number of schools and has had four CRB checks. I hope that the coalition Government will smooth out that totally unnecessary duplication. Also, surely the Government normally do due diligence on anyone with whom they intend to sign a contract, so I think that the second subsection in the amendment may be superfluous, too.

The main point of this debate is consultation. Of course schools should consult all the relevant people and provide them with the information that they need to be able to respond appropriately. To become an academy is an enormous change in the governance and funding of a school. Indeed, I think that it is very risky, as Clause 1(2)(b) and Clause 1(3)(b) give enormous power to the Secretary of State without any scrutiny by Parliament. Perhaps we will get that changed during the Bill’s passage through your Lordships’ House. We will discuss the merits of these arrangements later, but the fact remains that a school that becomes an academy under the Bill does so entirely at the whim of the Secretary of State, so it needs to be sure about the potential benefits of the change to the education that it provides to all the children in its locality.

Incidentally, I do not believe that these schools should be called “independent”, as they have been described. They will be totally dependent on the Secretary of State for their funding and the terms of their operation. My noble friend Lord Greaves referred to them as “autonomous”, which I believe is a better expression.

The difference between our amendment on consultation and those tabled by the Opposition is that we do not include the trade unions. I thought that I should explain why that is. Unions are national organisations, whereas we have proposed consulting local people or organisations that have a keen interest in the school. No national organisation can have a relevant view of the merits of the application of every individual school. The local people matter here and it is they who should be consulted.

That is especially true of the children. I have been in your Lordships’ House for 10 years. At the start, when the Labour Government brought legislation before us, we had to put down a lot of amendments about what I call the voice of the child. Gradually, the Government got the message and, I am glad to say, such provisions started to appear in Bills, so we did not need to put down those amendments. I hope that the Minister will take into account the fact that, when you consult children about things that affect them, you get better decision-making. I also hope that, if he cannot accept these amendments, he will at least put this in guidance, so that schools have to consult the appropriate people.

On the matter of the documents that should be sent out to the people who are being consulted, Amendments 101 and 102 are far too prescriptive. We would leave it to the schools to judge what material it is appropriate to send out. On these Benches we intended to add something much briefer and less prescriptive but it got lost and did not go down in the end. The period suggested for the consultation is six weeks by the noble Baroness, Lady Morgan, and four weeks by the noble Baroness, Lady Howe. However, the school will have to make the TUPE arrangements with staff, which requires 10 weeks and should not be during the school holidays. Schools will have to take a lot longer than four weeks, and so they should. I have already urged my right honourable friend Michael Gove to hasten slowly, and I shall do the same to my noble friend Lord Hill. That should be the watchword. The decision does not need to be fast but it needs to be right.

[Baroness Morris of Yardley]

I support the amendment proposed by my noble friend Lady Royall. This is a very strange part of the Bill, and I am not sure what the rationale behind it is. The Bill purports to want to know the views of people in communities or schools where children’s lives are affected by what legislation says. However, it excludes from consultation at key points anybody outside the school. I wonder if this comes from the Government’s fears over what happened when they had ballots over grant-maintained schools. If so, I well understand that. That was a procedure that ended up causing terrible arguments and distrust between groups of people and communities who should have been working together. There is absolutely no way that I would want to return to that. Indeed, in my time at the department, we did not have ballots in that manner. I am sympathetic, but the Minister mentioned in the last debate that people are somehow suspicious of academies and free schools. There is no better way of making them more suspicious than to exclude them from being consulted. If the Minister accepts that that suspicion is already there, I am not sure why he wants to risk building it up by, as I say, excluding people from consultation.

I have two more points. When this issue was previously been raised in the course of the Bill, the Minister said that the previous Government did not have means of consulting anyway. Correct me if I am wrong, but the essential difference was that, under the legislation used by the previous Government, one school was closed and a new one was opened. The consultation took place as part of the school closure and opening. In the Bill, the conversion of a school—as far as I can see, there is no official closure and opening—excludes any consultation at all.

Finally, the amendments do not seek to take away from the Secretary of State the right to decide whether or not a school should be granted academy status. You might argue that they ought to, but they do not. I cannot see that they would delay any consideration. If I was the Secretary of State in this situation, I would want to put myself in a position where I took the community with me, just to give any new school the best possible start to its life. To load a school with potential suspicion when that need not be the case is really not acceptable. To accept amendments along these lines, if not in such detail, would be very good for any schools that become academies under this legislation.

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[Lord Hill of Oareford]

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

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

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

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

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

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

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

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

[Baroness Walmsley]

Does my noble friend accept that if schools want to convert by September, that will give them quite a lot of time as long as they get on with it? However, if he does not want to put this into legislation, will he consider putting it in guidance and not just on the website?

[Lord Hill of Oareford]

I am grateful to my noble friend. The point about whether schools will be able to convert in time for September has certainly been raised, and there has been a suggestion that the timetable has been politically driven. As I said before, our approach has been to put out the idea and be permissive. Some schools may well convert in time for September, which we think is perfectly possible, as my noble friend says, but other schools will no doubt take longer, and that is also fine.

In response to my noble friend’s more substantive point, which is where my argument was heading, having listened to this debate I recognise that we have to be as transparent as possible in this process. As I said, I recognise the points that have been made about the spirit of consultation, and I can say to the Committee that I am willing to take that thought back to the department and consider how best we can ensure that the conversion process carries the confidence of all interested parties—a point made forcefully this afternoon. On that point, I urge the noble Baroness to withdraw her amendment.