Academies Bill [HL]

Lord Bishop of Exeter Excerpts

Monday 28th June 2010 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I have tabled Amendment 92 in this group. I cannot resist commenting on the fact that we have been in debate on the Bill for 20 hours and are still only on Clause 2. That says something about the drafting. My amendment covers a simple point. I suspect that the Minister will say that the amendment is unnecessary, but it makes clear that the seven years’ period of notice the Secretary of State can give under Clause 2(2) in relation to payments to an academy may be given at any time. It follows a well worn precedent in normal law of contract, but if he assures the Committee that it is superfluous, so be it.

[The Lord Bishop of Exeter]

My Lords, I make a brief intervention on the group of amendments concerned with reversion to maintained status. What I am looking for is clarification on the consequences, intended or unintended, of any of these amendments in the case of an academy that had formerly been a church school or a school of particular religious character. Is there a clear intention here that such academies should revert to that form of status, and if so, to what extent in any of these amendments is that intention secured? Moreover, in the provisions that require consultation, in the case of church schools should there not be explicit consultation with diocesan boards of education or their equivalents, for whom such a reversion would have resource implications?

[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.

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I hope that explanation provides factual answers to the questions raised and an explanation of the process. In the light of that, I urge noble Lords not to press their amendments.

[The Lord Bishop of Exeter]

I return to my question in the light of what the Minister has just said. I understood him to say that if a school of a particular religious character becomes an academy and then seeks to revert to maintained status, nothing within the process guarantees that that particular character will be continued and protected.

[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.

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Finally, the purpose of Amendment 187 is to make it clear that the academy conversion process and the business of issuing orders and negotiating academy arrangements cannot be transferred to the YPLA. Section 77 of the Apprenticeships, Skills, Children and Learning Act 2009 makes it clear that the academy arrangements cannot be transferred to the YPLA—or the negotiation of academy arrangements cannot be so transferred. This amendment is just to clarify the situation and ensure that issuing academy orders is included within the term “academy arrangements”. Can my noble friend the Minister make clear that that is so and confirm that the role of the YPLA is an agency one to administer the arrangements and fund the academies once they have been set up?

[The Lord Bishop of Exeter]

My Lords, I speak to Amendment 112. Like the noble Baroness, I have some concerns about the way in which the power to which the amendment refers might be exercised—although, in my case, particularly with regard to church schools, which will come as no surprise. The principle issue relates to the power to intervene should schools standards not be up to scratch. Noble Lords will be aware that such challenge and intervention currently lies with local education authorities for church as for community schools. In our diocesan boards of education and our sister Roman Catholic dioceses and schools commissions, we have long been accustomed to work with them to address weaknesses.

We need to find ways in which to enable diocesan boards of education to be fully involved in identifying weakness and working with governing bodies in supporting improvements at an early stage prior to the exercise of the Secretary of State’s draconian powers as set out in the measure. With or without such a provision in the Bill, there is a further danger in the clause as it stands in that the powers that it confers could be used in respect of a school where standards were unsatisfactory to radically change the character of a school. By turning over responsibility for a school to other providers, the existing trustees could be bought out, the original intentions of a school of religious character overruled and a school of a particular character brought to an end.

The Secretary of State is, I believe, of the view that this would not be compatible with the provisions of the European Convention on Human Rights, but we are not at all sure about that since, as the Bill stands, it would appear that a school could be taken away from the church without the relevant church body—in our case, the diocesan boards of education—having had any opportunity, along with the governing body, or power to challenge or intervene at an earlier stage. We hope that some of these issues can be further explored before the matter returns to the House.

[Lord Hill of Oareford]

My Lords, this group of amendments deals with academy orders which enable the conversion of a maintained school into an academy. Amendments 105, 115 and 123 seek to place in regulations the process of applying for an academy order and to require the publishing of the criteria that the Secretary of State will take into account when approving academy order applications and entering into academy arrangements. As your Lordships might expect by now, we are unconvinced that it is necessary to prescribe in regulations the application process for an academy order, as this is an entirely administrative process. The Government have made it clear that they will apply a rigorous fit-and-proper-person test in approving any sponsors of an academy or promoter of a free school.

In response to one question raised by my noble friend Lady Sharp, I can confirm that the Secretary of State will publish on the department’s website criteria for deciding applications from schools which are not outstanding. I agree that it is important that people know where they stand. We will make sure that those are available when we have done some more work on that.

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[Baroness Sharp of Guildford]

My Lords, the amendment is in my name and that of my noble friends Lady Walmsley and Lady Garden. Clause 7 applies not to land but to items such as electronic hardware and software, furniture and cleaning or catering contracts. It permits the Secretary of State to make a property transfer scheme, which, in effect, transfers to the academy various property and contractual rights and liabilities that previously belonged to the local authority or, through it, the maintained school that the academy is replacing. As it stands, the clause makes no mention of any consultation with the owner of the property—whether it is the local authority or otherwise—or with people such as the catering contractors who might be affected by such a transfer. It seems natural justice that they should be consulted and the purpose of the amendment is to ensure that they are consulted. Will my noble friend also explain what subsection (6)(a) means? What sort of property rights,

“could not otherwise be transferred”?

I beg to move.

[The Lord Bishop of Exeter]

My Lords, I have been asked to speak to Amendments 171 to 174 in the name of my noble and right reverend friend the Bishop of Lincoln, who cannot be in his place today due to commitments in his diocese—although I dare say that his commitments will be over rather sooner than yours and mine.

I should like to speak to these amendments as a group because they relate to complications that could arise from the Secretary of State’s powers to compulsorily purchase the site of an existing church school as part of the academy formation process. The amendments are technical and are being put forward because of the extraordinary complications in respect of the ownership provisions of many voluntary schools sites—again, predominantly those held in trust by Church of England bodies.

As I am sure all noble Lords will know, the School Sites Acts of Queen Victoria are still in force and contain a technicality called a “reverter”. It is our view that reverters will be likely to apply to at least some sites dealt with under the provisions of this Bill and that in consequence the rights of the heirs of original donors will come into force if and when the school site is purchased by the state. Thus, the closure of a school in order for it to reopen as an academy may trigger reverter conditions, enabling the trustees to reclaim the land. Likewise, the original donation of the land in trust probably had conditions attached such as its use for church schooling only. In this respect, we do not think that the Government have taken into account the effects of the Schools Sites Act 1841 and of the Reverter of Sites Act 1987. Many of our school sites can be regarded as being part of the church’s historical assets and every effort needs to be made through discussion with the diocese and trustees to ensure that the transition is both smooth and a legitimate handing on of the asset in trust.

These are therefore probing amendments through which I hope to draw out the Minister to clarify the Government’s thinking on this arcane subject. They seek to protect trustees and heirs from the complications that might ensue and to protect the Government from a nasty and expensive legal trap if the issue is not clarified and addressed now.

[Lord Hill of Oareford]

My Lords, the amendments in this group deal with the transfer of school property to the successor academy. Amendment 160 deals with the transfer of property other than land. In response to the question from my noble friend Lady Sharp, that means things such as desks, computers and so on. The amendment would impose a requirement to consult the local authority, and possibly others, before the property may be transferred. In the case of converting academies, the clear intention is that there should be a smooth transfer between the existing school and the academy, as part of which the school would need to be able to continue to use its property, including things such as desks, computers and so on—property other than land. I am conscious that we have discussed the question of consultation in other contexts and I have said to the Committee that I will reflect further and come back to it. I am aware that views on consultation differ, but I will bear in mind my noble friend’s points as part of my reflection.

The amendments spoken to by the right reverend Prelate the Bishop of Exeter are, as he says, extremely technical and complex, particularly as they concern the Reverter of Sites Act. Perhaps it would be acceptable to him if, for the convenience of the Committee, I were to write to him at length on those points and place the letter carefully in the Library. I understand the significance of these issues to the church and do not want to rush them, get them wrong or end up, as he says, with an expensive lawsuit. I am advised that we have some answers to the points. Perhaps I may write to the right reverend Prelate and circulate the letter widely. When he receives that letter, if there are specific circumstances that the church authorities have in mind and about which they are still concerned, I would be happy to consider the matter further if he or others contact me. If he and the rest of the Committee agree to that proposal, perhaps he will refrain from pressing his amendments and my noble friend Baroness Sharp will withdraw hers.

[The Lord Bishop of Exeter]

I thank the Minister for those assurances and will not press the amendments this evening.

[Baroness Sharp of Guildford]

I am grateful to the Minister and am glad that he is going to think about this. It seems to be natural justice that there should be some consultation with the owners of the property concerned. In the light of that, I beg leave to withdraw the amendment.