Academies Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 23rd June 2010 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

6A: Clause 1, page 1, line 6, leave out from “agreement” to end of line 7

[Lord Hunt of Kings Heath]

I shall speak also to Amendments 14, 74, 79, 96, 124 and 125. I start by offering my congratulations to the noble Lord, Lord Hill, on his ministerial appointment. This is my first opportunity to be able to do so from the Dispatch Box. I have greatly appreciated his approach and his evident willingness to listen to the points put to him and respond in a most helpful way. I hope that the noble Lord will accept that our amendments are in the same spirit. They are designed to be constructive and to probe some of the detailed provisions in the Bill before us.

I am sure we all share the same aim of wanting to enhance and improve state education and to do so in a way that fosters collaboration between schools and has a positive impact on the state education system as a whole within each local authority area. The way schools become academies is an important element of that and is covered by Amendment 6A. The Bill sets out two academy arrangements. They are an academy agreement and academy financial assistance. This probing amendment seeks to remove the latter approach in Clause 1(2)(b).

The reason for an academy agreement is clear: there has to be an agreement and payments under it have to continue for a minimum period of seven years or indefinitely with seven years’ notice. There is also the financial assistance route. In discussions on the first day in Committee, the Minister said:

“The point of having two ways of establishing an academy is that in addition to the current funding agreement route, it was thought to be sensible also to have a flexible way of approaching the subject, particularly in so far as the new free schools might be concerned”.—[Official Report, 21/6/2010; col. 1221.]

The Minister was subsequently asked by the noble Lord, Lord Greaves, whether it is the Government’s intention to use the legalisation before us rather than the 2002 Act for free schools. The Minister promised to clarify that, and my amendment allows him an opportunity to do so. Interestingly, in the Minister’s statement on free schools policy, in answer to a question from the noble Baroness, Lady Walmsley, he said that in regard to the financial assistance funding arrangements in Clause 1(2)(b), which can apply to all academies, not just free schools:

“The point of having a grant rather than a seven-year funding arrangement is that, particularly with a free school, which is a new and untried school, the Secretary of State might not want to be bound into an agreement for seven years and might prefer something that gives him greater flexibility”.—[Official Report, 21/6/10; col. 1192.]

The Minister wrote to us on Friday that academies funded through grant funding would have the conditions of their grant outlined in a grant letter, and that it is for the Secretary of State to decide the terms of conditions. I understand the point about flexibility. Indeed, how I would have wished for that type of flexibility in the 20 or so Bills that I have taken through your Lordships’ House. Understandably, however, your Lordships have been reluctant to give so much authority to Ministers without effective parliamentary oversight, and I remind the Minister that the theme of yesterday’s Budget was the need for rigorous control of cost in the public sector. I would have thought that that would have involved a rigorous process when deciding the merits or otherwise of a free-school application. I question why the Government lack so much faith in the process that they are establishing that they need a get-out clause on funding in case their judgment is wrong, and I suggest to Minister that one way in which to ensure more rigour in the application process is to have proper consultation and a significant role for local authorities.

Both the Bill and the Explanatory Memorandum are remarkably lacking in detail on the financial assistance funding mechanism in Clause 1(2)(b). That is unacceptable, which brings me to my Amendment 14, which seeks to deal with this by proposing that any such financial assistance that is to be given under Section 14 of the Education Act 2002 should be set out in regulations and subject to the affirmative procedure. Noble Lords around the House have consistently called for greater parliamentary scrutiny of the Executive, which, in the case of free schools and the scanty provisions in this Bill, is certainly justified.

My Amendment 79 is in a similar vein. It would provide for the Secretary of State to make regulations on academy arrangements, and would give some measure of parliamentary scrutiny.

My Amendments 124 and 125 continue this theme. The Bill at Clause 4(6) removes the sensible requirement for the Secretary of State to exercise his powers to make academy orders by statutory instrument. Amendment 124 would delete subsection (6), thereby reinstating that requirement. Of course, if the Bill is passed and thousands of independent state schools are created, there will be the practical issue of processing those orders through Parliament, so we have come up with one option to deal with this; Amendment 125 would require the first two orders in each local authority area to be subject to the affirmative procedure. That would not be unreasonable. It would allow each local authority area to be examined, and the impact of academies and free schools on the school system as a whole to be assessed by Parliament.

There may be other approaches, but the substantive point is that the appropriate parliamentary scrutiny must be established, and I hope that the Minister will be able to be positive about this. I should say to him that I find it richly ironic that the coalition agreement promises a radical devolution of power to local government. The reality is somewhat different, as this Bill shows. In essence, Ministers are aggrandising huge powers to themselves and, in the case of free schools, on the basis of rather ambiguous evidence provided today by the Institute of Education. We therefore believe that it is vital that Parliament must be able to scrutinise properly the process of approving the academies and free schools.

Amendment 74 is another probing amendment. Adequate insurance cover will of course be important. I am sure that this point is covered in legislation, but it would be good to have confirmation from the Minister.

On Amendment 96, I declare an interest in that my wife is an assistant principal at Joseph Chamberlain Sixth Form College, Birmingham. Our amendment would place a duty on the Young People’s Learning Agency to ensure fair funding between schools at sixth-form level. Colleges educate and train more than 700,000 young people aged 16 to 18 compared with about 487,000 in schools’ sixth forms. They provide high-quality opportunities for 16 year-olds from all backgrounds to stay in learning. Their contribution will be critical at the current time. Fair public investment in all young people will further enable colleges to carry out their role effectively.

The previous Government took action to reduce the funding gap from 13 per cent between schools and colleges to 9 per cent. It is also worth bearing in mind that colleges face additional costs related to VAT and capital projects, for which schools receive 100 per cent state funding. The additional funding for schools is given despite evidence that colleges are more successful in helping students to achieve and that they recruit a more disadvantaged cohort of students. Colleges have a more rigorous system of outcome measurements because retention rates are also taken into account.

Of those young people who receive the education maintenance allowance 69 per cent are in college, while official data show that 7.4 per cent of school sixth-form pupils were on free school meals at the age of 15 compared with 10.1 per cent in sixth-form colleges and 15.9 per cent in FE colleges.

In debates on the Apprenticeships, Skills, Children and Learning Bill in the previous Parliament, the then Minister, my noble friend Lord Young, said that the YPLA will set out progress in reducing the funding gap in its annual report. Further research would be carried out and a report placed in the House Library once the year 2011-12 has been completed. The coalition agreement states that public funding for colleges should be fair and follow the choices of students. I would welcome confirmation that the Government would still expect the YPLA to report on the funding gap in its annual report. That being so, I hope that the Government could state what action they might consider taking to ensure that all 16 to 18 year-olds are funded fairly. I beg to move.

[The Lord Speaker (Baroness Hayman)]

I have to inform the Committee that if Amendment 6A is agreed, I cannot call Amendments 7 or 8 by reason of pre-emption.

--- Later in debate ---

[Lord Hill of Oareford]

I was about to make a point that relates to the issue that the noble Baroness has raised. The Delegated Powers and Regulatory Reform Committee of this House, which has reported on the Bill, has made it clear that it does not consider it necessary or appropriate for these orders to be made by way of statutory instrument. It made that clear in its first report of this Session, published on 17 June.

[Lord Hunt of Kings Heath]

My Lords, I am sure that many Ministers have read out the advice of the Delegated Powers and Regulatory Reform Committee when it suits the Government’s case. However, you cannot look at the orders or the suggested regulations in isolation from the whole process, which takes local authorities and formal consultation out of the procedure. Essentially, the Secretary of State is taking to himself considerable powers. That is why there is considerable support round the Committee for ensuring that there is parliamentary scrutiny. I am happy to concede that the amendments before us may not fit the bill, but there is a principle here in relation to the Secretary of State taking to himself certain powers that are held by local authorities. A formal consultation process will not be allowed; it is certainly not in the legislation. Therefore, there has to be some form of additional scrutiny. As that scrutiny will no longer take place at local level, it can take place only in Parliament.

[Lord Hill of Oareford]

I am grateful to the noble Lord for making the point that these ways of dealing with the issue may not be the right ways forward. I also take the point on the core question of consultation, which we have debated already in Committee, and the question on accountability, which my noble friend Lady Williams raises. We recognised at an earlier stage in Committee that there is a tension when one is seeking to give greater responsibility at a very local level—to teachers or parents, which is a more local level than the local authority level. I recognise the tension between the very local level and what goes on in the centre and the force of the points made by the noble Lord and others. I will reflect and see whether there is any sensible way in which to take those points on board. I have, in passing, touched on the point that an academy would not need to receive funding through both routes.

Amendment 66 would remove exceptions to the prohibition on academies to charge for education provision. Academies would not be able to charge for and, in many cases, run after-school education such as extra-curricular music or drama lessons. I want to reassure the Committee that academies will not be permitted to charge for education provided during the usual timetabled school hours. In respect of charging for education, academies will have to do exactly what any maintained school would be expected to do.

In resisting Amendment 74, I do not mean to imply that insurance is unimportant for academies. Of course it is important and, under existing arrangements, academies are required to have insurance relevant to their responsibilities. However, that kind of matter does not need to be in the Bill. The same applies to Amendment 95, which would ensure that the Secretary of State’s indemnity covered only reasonable expenditure. The Secretary of State is bound by a duty to act reasonably in all matters. He would therefore offer indemnities only in respect of expenditure that was reasonably incurred.

At the beginning of my remarks, I touched on the need for funding arrangements to be fair and to be seen to be fair. That issue was raised by my noble friend in talking about Amendments 15 and 16, on the National Audit Office. Our view, which the noble Lord, Lord Adonis, would share, is that the NAO would not necessarily be the right body. However, as I have said, I will certainly reflect on the underlying principle of making sure that there is transparency and trust in these arrangements.

On Amendment 96, we are not suggesting that the YPLA should be able to spend disproportionately on sixth-form provision in academies. However, there is no need for this vague duty to be in the Bill. Under the national commissioning framework, local authorities are responsible for commissioning sixth-form places in maintained schools. In addition, there is a consultation process in which academies should take part. Ideally, their sixth-form provision will be agreed with the authority. It may be that in some cases such an agreement is not reached. In that case, the YPLA will step in to make a decision. Its regional structure will enable it to reach these decisions on an informed basis. We are not convinced of the need for a general requirement.

Amendment 31, tabled by my noble friend Lord Lucas, would put in the Bill academies’ freedom to innovate. I am sympathetic to his broad case on innovation, but it would seem slightly odd to specify one particular freedom—the freedom to innovate—when the whole purpose of the academy programme is to deliver freedom more generally. We believe that those freedoms are best delivered by an absence of regulation wherever possible. I know that my noble friend agrees that head teachers and staff know best how to run schools. We think that the Bill gives them those freedoms. The academies that I have seen are already full of innovation and they have done that without the specific legislative freedom to innovate.

Amendment 34 would make it an absolute requirement on all academies to work in partnership with other schools. I very much agree with my noble friend Lord Lucas about the excellent examples of partnership that we have already seen in academies. The Government have the strongest possible expectation that that should continue and that every outstanding school that acquires academy freedoms should partner with at least one weaker school. We hope that this will raise performance and support across the system, to mutual benefit. I agree that outstanding schools are in a strong position to do this. We are asking all prospective academies to provide details of their plans to support another school as part of their application process.

My noble friend’s amendment concerns a core theme to which we keep returning: to what extent do you get the best out of people by trusting them and setting high expectations, or should you instead impose an absolute obligation on them? My instinct has been, and remains, that often one gets further by going down the route of trusting people. We believe that there is a potential problem of the unwilling conscript. One can see that there could be perfectly good reasons why in certain circumstances—perhaps for reasons of geography in a remote rural area—an absolute requirement would not be practical. This might also be the case with schools converting that are not outstanding. The case for a requirement for those schools would be even less convincing than the case for a requirement for outstanding schools. Schools that are currently good or satisfactory and that want to become academies may not be in the best place to form a partnership with a failing school.

Amendment 120A would make it impossible for an academy conversion to be taken forward in circumstances where, for example, it was intended that a single academy should replace more than one maintained school as part of sensible local reorganisation proposals. As noble Lords will appreciate, we want the conversion process to be sufficiently flexible to take account of, and allow for, such reorganisation.

I hope that I have picked up on the main points raised and provided some reassurance. I undertake to reflect further on one of the core themes of this set of amendments and urge noble Lords not to press them.

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Lord for that response. Of course I will be happy to withdraw the amendment. Perhaps I may just say that the noble Lord has offered to reflect on the issue of parliamentary accountability relating to decisions made by the Secretary of State and I am very grateful to him for doing so.

Amendment 6A withdrawn.

--- Later in debate ---

[Baroness Morgan of Huyton]

I always get very nervous listening to these debates in this House—we are going through many of the same conversations that we had three years ago—because there is a real danger that we will end up falling into a shorthand of “Church of England good, everybody else bad”. People listening outside to this debate could get a clear feeling that we think that you can have as many Church of England schools as you like because they are fine, but any other religiously supported school, albeit fully state-funded, is a bit iffy.

We must be very careful about the message that we send from this debate. There is a distinction between the issue of faith schools and those of, for example, admissions, proper supervision, the curriculum and inspection. They have always been crucial for taking forward faith schools in this country. I know that we do not like central control any more, but if there is any way that we can give an assurance that there is proper supervision of the curriculum through inspections, and potentially look again at admissions, that would be very helpful, rather than allowing a separation between types of faith.

[Lord Hunt of Kings Heath]

My Lords, this has been a remarkable debate and I do not envy the Minister the job of winding up. The noble Baroness, Lady Murphy, put some very pertinent points to him, which, in a sense, reflected the dilemma that we face, to which my noble friend has just pointed. On the one hand, we know that the majority of faith schools are successful, thriving and popular with parents and that local communities give them tremendous support. They are, if you like, a glory and an indication of the diverse system that we have. They are schools with a distinct specialism, mission or ethos. We know that, at their best, faith schools do an incredible job. As an example, I point to the report of the Commission on Integration and Cohesion, Our Shared Future, which recognises that there are faith schools with pupils from many different backgrounds and faiths, as well as largely single-background schools that are not faith schools. Of course, under the current arrangements, all maintained schools, including faith schools, must meet a range of legal requirements, including the need to have fully qualified teaching staff and to teach the national curriculum. In addition, under Section 38 of the Education and Inspections Act 2006, governing bodies of all maintained schools have a duty to promote community cohesion. That is specifically inspected by Ofsted.

My understanding—perhaps the Minister will confirm this—is that academies will have no duty to follow the national curriculum and that, according to Ministers, certain measures, including social cohesion, will be dropped from future Ofsted inspections. The concern is that, although many good faith schools will obviously continue to foster social cohesion, fairness and inclusiveness, some of the safeguards currently in place may not be in place in the future. I very much reflect on the situation in Birmingham, where we have many faith schools. If different communities have separate faith schools, there is a risk that our hopes for social cohesion and integration will become very much diminished in the future. My noble friend Lady Morgan put her finger on that in her question to the Minister. I think that the Committee seeks an assurance that he understands some of the important points being put to him. I hope that he can reassure noble Lords that there are mechanisms whereby we can ensure that the careful balance of religious freedom, social cohesion and tolerance, which have been a strong feature of our education system, continues in the future.

The Minister may find it useful to meet noble Lords between Committee and Report for a further discussion, because it is quite clear that there will be another extensive debate on Report. My noble friend Lady Morgan really put her finger on the question of how the Committee can be assured in this area. Certainly, anything that the Minister can do to reassure noble Lords will be very helpful.

[Lord Hill of Oareford]

My Lords, I do not envy myself the task of winding up either. This is my first opportunity to listen to a debate in this House about matters relating to religion. I suppose that I should call it my baptism. As the noble Lord, Lord Hunt, said, there have been a number of extremely forceful and powerful speeches from every point of the compass. Reconciling them is not straightforward.

Perhaps I may take us back to the Bill, because in this fascinating debate we have gone quite far from it. The Bill is quite modest in its approach to current religious schools and the question of how they might want to think about conversion. Our basic, underlying approach in all these matters is to seek to allow schools that currently have a religious nature to convert on their current footing with the safeguards and requirements that are in place. We are not seeking to change the nature of those schools or in any way to have some kind of Trojan horse, unleashing a new wave of faith schools without some of the restrictions that are in place, to which a number of noble Lords have referred.

Having made that general point, perhaps I may go through the individual issues that have been raised. First, I say in response to the noble Lord, Lord Hunt, that throughout this process I have been happy to talk to any noble Lords who can face the prospect of a further discussion. I have also been talking at length to churches and am very happy to talk to others. If, in that process, I am able to give further clarification and reassurance to underpin my basic point, which is that on these important issues we are not seeking to change the status quo with this Bill, I shall obviously be very happy to do so.

I now return to the beginning of this debate and the amendment moved by the right reverend Prelate the Bishop of Lincoln. The Government are committed to ensuring the maintenance of the churches’ relationship with their schools. As the right reverend Prelate knows well, I have met representatives from the churches. I understand the concerns that they bring to this debate, which are from the other end of the spectrum compared with other points that have been made. I have studied the Bill carefully in connection with those concerns and can see nothing in it that could undermine the very important relationship that the churches have with their schools. Again, one of my tasks is to try to build on the reassurance that I hope I have been able to give so far. As the right reverend Prelate knows, I have written to the churches to set out our commitment to work in partnership with them. A copy of that letter is in the Libraries of both Houses.

I confirm that the existing protections and responsibilities in relation to admissions, the curriculum—including the obligation to provide religious education and collective worship—and staffing arrangements will be the same for academies with a religious character as they are for maintained schools with a religious character. I think that that was a specific point made by my noble friend Lady Williams. So far as employment law is concerned, the Bill retains the status quo. All schools will need to comply with employment law.

The religious education syllabus requirements for academies are currently delivered via the funding agreement, rather than through legislation. In future, they will be delivered through academy arrangements—either through the funding agreement or the grant conditions—in accordance with Clause 1.

So far as concerns the question from the noble Baroness, Lady Massey, I agree that it is important that pupils have the right to be excused from, and that parents have the right to withdraw their children from, religious education and worship. It is an important issue of conscience. However, we think that the noble Baroness’s amendment is unnecessary in that academy funding agreements already require academies to comply with the School Standards and Framework Act provisions on pupils being excused and in relation to withdrawal. I place on the record that all future academy arrangements will have that same requirement. Therefore, the important right that the noble Baroness raised will be maintained.

Such protections as are set out in the funding agreement cannot be changed without the agreement of both the academy trust and the Secretary of State. We think that having those requirements in the funding agreement gives the same degree of protection to academy trusts as would be provided by legislation. As many in this Committee know better than me, there is a wide variety of approaches in how the churches govern and manage their schools—it is a complex area. Our view remains that having those provisions within the funding agreement rather than in legislation allows for individual circumstances to be reflected and avoids creating an undertaking that may not fully reflect the position of all religious schools.

On Amendment 35 tabled by my noble friend Lord Lucas, I shall reiterate my opening remark. We are not seeking to use the academies programme as a back-door way of deliberately increasing or changing the balance that we currently have in our education system. We do not think it appropriate to limit the number of faith admissions to 50 per cent when an academy is replacing an existing faith school; we think that the school should be able to carry across its current arrangements. That would not add or change the current situation. I hope that this provides some reassurance to noble Lords that we think it right that for the new academies—the new free schools—the requirement of limiting the number of faith admissions to 50 per cent should be in place. New academies would not be able to go beyond 50 per cent, as that would reduce choice. We think that it is important to have that balance and I am happy to make that clear tonight.

[Lord Hunt of Kings Heath]

The Minister is being very helpful, but can he clarify that? Whatever assurance is given, some schools will have pupils of one faith only. That is the reality of the schools to which the noble Baroness, Lady Murphy, referred. What will happen in that situation? It is likely that you will end up with students from only one faith or culture going to the school.

[Lord Hill of Oareford]

These are difficult and complicated matters and I do not have a simple and straightforward answer for the noble Lord now. I have said that it is an important matter that we can debate further outside this House. Let us do that by all means.

As I was saying, we think it important to ensure that local children of all faiths or none—I take the point that has just been made—have access to new academies. We will ensure that there is the balance that I discussed between community and faith places. All academies will have to have admission arrangements.