Education and Adoption Bill

Lord Nash Excerpts

Wednesday 16th December 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)]

My Lords, I shall speak to government Amendment 20 concerning communication with parents, the opposition amendments on that and Amendment 27A.

Our amendment is all about ensuring that parents are informed about the action being taken to improve a school. I know that what any parent wants for their child is for them to attend a good school and for there to be quick, effective action if there is significant concern about that school. Where a school has failed, it is right that we take the action that we know will have the best possible impact on improving the school’s performance, and that we make sure that this happens as swiftly as possible. We are clear that becoming a sponsored academy will always be the solution for a school judged inadequate by Ofsted.

That does not, of course, mean that parents do not have a right to know what will happen in their child’s school. Once a sponsor has been identified for a failing school, it is already common practice for it to engage with parents about their plans for the school, ensuring that parents know what to expect and that they understand the process of converting from a local authority maintained school to an academy, and to give them the opportunity to share their views about the changes that the sponsor proposes to make.

We have tabled Amendment 20 to ensure that there is greater consistency for parents on this matter. The amendment will provide assurance that when under- performing maintained schools are becoming sponsored academies, parents will always be kept informed.

To support the amendment, we will also make changes to the Schools Causing Concern guidance to reflect the new requirement. We will use that guidance to provide more information about what the communication from sponsors could typically look like in practice; for instance, to suggest that sponsors might want to write to parents when they are first matched to the school to provide more information about them as sponsors—although, as we have heard, it might be appropriate in some cases for the governing body to make the first communication—to explain their ethos, what parents can expect to happen next, and hold meetings with parents to share information and answer questions. We think it more appropriate for this to be set out in guidance rather than in legislation, ensuring that sponsors have flexibility about precisely how they communicate with parents, to allow them to tailor their approach to the specific circumstances of the school.

We will also reflect the new requirement on sponsors in the notification letters that are sent to the school governing body, the head teacher, the local authority and, where appropriate, the trustees of a foundation school, the religious body responsible for the school, where it is one with a religious character, and to the sponsor itself where one has been identified, where a school is being required to become an academy. We will specify as standard in those letters that the sponsor identified by the RSC will communicate to parents information about its plans to improve the school. This will ensure that all parties are aware of the duty on sponsors.

I spoke earlier about the commitments we have made to ensure that parents are kept informed specifically when a school is coasting. As I committed earlier, we will use the Schools Causing Concern guidance and the notification that RSCs will send to the governing bodies of coasting schools to make very clear our expectation that governing bodies must inform parents when the school has been identified as coasting.

In the light of the amendment that I have tabled and the other commitments we have made to ensure that parents will be kept informed when their child’s school is eligible for intervention, I hope noble Lords will be in no doubt that we recognise the importance of ensuring that parents know what is happening in their child’s school, and will therefore support the government amendment.

Noble Lords have tabled Amendments 21, 22 and 23 to alter what I have proposed. Rather than requiring sponsors to communicate to parents about their plans to improve the school, the sponsor would be required to consult parents about their plans. As I have already set out, I cannot accept the reintroduction of a statutory consultation process. That absolutely does not equate, however, to a belief that parents should not have a right to know, or be involved in, changes that affect their child’s school. I believe that the sponsor, who will be responsible for transforming the school, should have the duty to communicate to parents. We know that sponsors already put a lot of effort into explaining the steps that have been taken. Our amendment will ensure that this will apply consistently.

We expect that in many cases, sponsors will want to go considerably further than the minimum requirement and seek views from parents about specific changes they intend to make to the school—for example, if they plan to change the name of the school or the school uniform, they may ask for suggestions, views or designs concerning their proposed options. However, requiring sponsors to engage with parents through formal consultation, which the amendments propose, is not appropriate. As I said, a formal consultation process is inflexible and in too many cases will unnecessarily raise the temperature of the debate. The arrangement that I have proposed is a much more appropriate approach and gives the sponsor flexibility to tailor its communications to parents to best suit the circumstances of that particular school.

The noble Lord, Lord Watson, asked why this does not apply to academies. Amendment 20 addresses the specific concerns raised by noble Lords about the requirement for failing schools to become academies and to share information about the process involved when a local authority maintained school changes its status to an academy. In cases where an academy is moved to a new sponsor, I am happy to reassure the noble Lord that we will consider in our revisions to the Schools Causing Concern guidance how to make it clear that regional schools commissioners will ensure that parents are kept informed.

The noble Lord also asked what would happen if the sponsor fails to communicate with parents. The duty is clear: the sponsor must communicate to parents information about its plans to improve the school before it is converted to academy status. If the sponsor were to fail to comply, we would not enter a funding agreement with that sponsor in respect of that school, and would look for an alternative sponsor. I am very happy to place that on record, and I hope that that reassures the noble Lord.

Amendment 17A proposes a requirement for staff to be kept informed of the changes in a school being required to become a sponsored academy, in addition to parents. While parental engagement is clearly critical, communication with others is already guaranteed through existing legal provisions. Clause 10 is explicit that the governing body and local authority should work with the named sponsor. The governing body will include the head and representation from parents, staff and the local authority, so those parties will also be kept informed via that route. The local authority will be further intimately involved in the detail of the transfer process of the school to academy status.

Amendment 17A proposes that staff at the school should be included in communications from sponsors, but the existing TUPE process means that employees will be notified about the transfer by their employer or the academy trust. Where the academy trust proposes any changes which affect the employees, there must be consultation about them. This means that there is already a legal obligation for staff to receive information about the incoming academy trust and be consulted on any proposed changes to their terms and conditions prior to any academy conversion taking place. This is comparable to what my amendment now proposes to introduce for parents. It is unnecessary for staff to be additionally included in the new requirement, and therefore Amendment 17A is unnecessary.

[Lord Watson of Invergowrie]

Before we leave this amendment, I asked in my opening remarks what would happen if local authorities or governors declined to co-operate. I am not necessarily talking about them being obstructive—just about them saying that they were not going to do anything. What would the Minister anticipate would be the response to that?

[Lord Nash]

I think we have the power to bring forward directions to the local authority and, eventually, I guess that we could go to court. But I shall write to the noble Lord to clarify that point.

I am grateful to the right reverend Prelate the Bishop of Ely for his supportive words about our Amendment 20. As I said, the Church of England is very skilled in community cohesion, and I take great comfort from his support for our proposals for communicating with parents. I also take this opportunity to say more about my assurances about how we will ensure that the religious character of a faith school will be protected when any interventions are necessary. The Government are firmly committed to enabling schools with a religious character to protect and sustain their ethos. There are already provisions in the law that ensure that, when a school with a religious character requires intervention, the religious character will be protected. When a faith school becomes an academy, it retains its religious character by virtue of Section 6 of the Academies Act 2010. The academy’s religious character is protected through provisions within the academy’s funding agreement with the Secretary of State and the academy trust’s articles of association.

When a Church of England school joins a non-faith led trust, we intend to insert the following within the trust’s articles of association: a faith object, which requires the trust to ensure that the Church of England character of the church school is maintained; an entrenchment clause that requires written consent of the diocese for changes to articles relating to the maintenance of the church school’s religious character—for example, those relating to the local governing body of the church school and appointment of staff; a requirement that members and trustees are appointed to provide proportionate diocesan representation on the MAT; and a requirement on the MAT to establish an LGB and for the creation of a scheme of delegation relating to the religious character of the school, agreed between the MAT and the diocese. The supplemental funding agreement for the church school will include a clause requiring the establishment of a governing body with the purpose of honouring the characteristics and ethos of the school. The master funding agreement for the MAT will also include a clause to prevent the MAT amending articles relating to the church school’s governing body and the scheme of delegation. A provision within the church supplemental agreement will ensure that the MAT cannot make amendments to the articles as they relate to the governing body of the church school without diocesan consent. This will agree the best academy solutions for any failing church schools, and we are reviewing and updating the non-statutory memoranda that set out the roles of dioceses and RSCs as they relate to the academy programme, to reflect the changes in this Bill and the wider evolving policy landscape. We expect that regional schools commissioners will work closely with dioceses. We will ensure that the RSCs will comply fully with the terms of the memoranda, and we support diocesan directors of education in upholding those terms.

Finally, Amendment 27 proposes that the education provisions of the Bill will be repealed after being in force for five years. The Government are focused on driving up standards of education in this country and giving children the best possible future. The Bill is an essential part of that; it will ensure we have the necessary powers to swiftly tackle underperformance, but it will also ensure that underperformance can be tackled whenever it occurs. It addresses not only schools that are failing right now, but will also ensure that any schools that slip in future will get the support and challenge they need to improve. The Government’s ambition is for every school to become an academy. Until the point when all schools have become academies, it will be necessary to have powers that allow swift and robust intervention in maintained schools that are causing concern, therefore it is right that we have the powers and duties introduced by the Bill for the foreseeable future.

What is in question here is a fundamental undermining of this Government’s commitment to drive up standards of education. It is not in the spirit of this House’s role to make legislation with a built-in expiry date, and I do not consider it necessary in this case. If and when we reach a point where all schools have become academies, we will of course consider what legislation it is necessary for us to repeal at that time. We will, anyway, review and report on the impact that these provisions are having through the academies annual report, which the Academies Act 2010 requires us to produce—or, if in five years’ time this House does not consider the provisions in this Bill necessary, as this amendment specifically anticipates, for whatever reason, this House should have a full and thorough debate on that matter in five years’ time. I do not want to see noble Lords tie our hands on this matter now through this clearly inflammatory amendment. Amendment 27 is not only unnecessary but not in keeping with the long-standing principles of this House, and I urge the noble Lord not to press it.

Following this debate, I hope that the noble Lords will appreciate that we have listened to concerns here and will support our government amendment and the right balance it achieves between decisive and clear action, while ensuring that parents are informed. I therefore hope that the noble Lords will support my amendment ensuring communication to parents and would urge the noble Lords not to press their other amendments.

[Lord Watson of Invergowrie]

My Lords, I thank the Minister for that comprehensive response. I would like to say a word or two about some of the other contributions. I am not sure whether the noble Baroness, Lady Perry, was here when I made my closing speech on the second group of amendments, but I think that I answered most of the points that she raised then. I shall briefly repeat them. The fundamental point is that doing nothing was not an option; it never has been and it has not been suggested. I outlined other possibilities at that time, and that remains our position. Secondly, we have not advocated a ballot, so it is not about having a vote on the matter. Thirdly, the emphasis, as the noble Baroness, Lady Pinnock, said, will be on convincing the parents that what is being proposed is in the best interests of the children. To me, that is always the best way forward, if possible. Finally, Amendment 23 says that the Secretary of State will have the final say by being obliged to “take into account” what has happened. I hope that that answers her points—it is not all or nothing.

I think that I heard the noble Lord, Lord True, correctly when he said in response to the noble Lord, Lord Storey, that in this democracy the people decide. That is exactly what we are calling for—but it seems that that does not happen with academisation.

The noble Lord, Lord Nash, said that parents have the right to know of and be involved in the plans. Involvement is a rather elastic concept, and what it means to one set of parents may not be what it means to another. I certainly appreciate the value of Amendment 20, as I said in my opening remarks, and parents will be pleased that they will at least, I imagine, be summoned to a meeting in the school hall, given a presentation and able to ask all sorts of questions, but there is no way for any rethink on the sponsor. That is the fundamental issue from my point of view. There may well be a number of reasons why the sponsor is deemed to be unfit as a result of what they say to the parents, but there is no way of dealing with that. That is a problem.

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[Baroness Pinnock]

My Lords, this amendment, to which my noble friend Lord Storey has also put his name, relates to the future of land passed into the academy trust during the process. I thank the Minister for the clarity of his response to my Question in the Chamber earlier this week about the future of church school land if that school becomes an academy. I understand that Church of England bishops have secured a memorandum of understanding that safeguards the future ownership of church land, and I am pleased that that concern has been resolved.

However, other land ownership issues remain unresolved or at least not resolved satisfactorily. For example, I am a governor of a voluntary controlled high school which is not faith-based. It is one of a handful in the whole country. The land on which Whitcliffe Mount School in Cleckheaton, of which I am extraordinarily proud, was built was donated by local businesses 100 years ago and the school building was built by public subscription and the urban district council. What safeguards are there for this trust land if the school becomes an academy? After all, it was in every sense of the word donated by the public, the local community.

There is the wider question of safeguards for the future of land that is currently in the ownership of local authorities. When maintained schools become academies, the land is typically the subject of a 125-year lease. However, the latest clarification of the guidance, which is in the Department for Education’s Disposal or Change of Use of Playing Field and School Land, which was issued in May this year, explains:

“Prior written consent of the Secretary of State for Education is required to dispose of land (which includes any transfer/sale of freehold or leasehold land and the grant/surrender of a lease). Applications and notifications must be made to the Education Funding Agency”.

Noble Lords will have noticed that the future of the land is subject to discussion not with the leaseholder but with the Secretary of State. That land—previously local authority land, which has passed to the academy trust—may well have been bought many years earlier by a local authority, with or without a grant from the Government. It therefore seems only right that the leaseholder is the main consultee if such land is ever the subject of disposal. Local people will be concerned if they think that school land they had helped years ago to purchase could be disposed of without local consultation. I trust that the Minister will be able to give me clarity about this important matter.

[Lord Nash]

My Lords, Amendment 19, tabled by the noble Baroness, Lady Pinnock, and the noble Lord, Lord Storey, concerns the ownership of school land when a maintained school eligible for intervention is required to become an academy. The Secretary of State has no power over privately funded land. That includes the majority of land held by the charitable trusts of church schools, and the majority of land held by the charitable trusts of the small number of non-church voluntary-aided schools. The provisions in the Bill do not change that basic position. As such, the ownership of land by these trusts continues to be protected. If the school to which the noble Baroness refers is a charitable trust, the Secretary of State has no power to acquire it.

Charitable trusts will be able to continue to hold their land and make it available to academies, as they do now. Where land is held by community groups and is in use by schools through local arrangements—for example, where the school uses the local rugby club pitch—there is no reason why any of the Bill’s provisions should change those arrangements. Again, land owned by community groups will be private land, and it will continue to be for the individual group to make its land available to the school. Likewise, where community groups are making use of school facilities—for example, the school renting out use of its playing field—the school can continue to allow it to do so.

Where public land is made available to an academy trust—for instance, by a local authority—the LA would usually lease the land to an academy trust on, as the noble Baroness says, a 125-year lease. The model funding agreement makes it clear that the academy trust cannot dispose of this land without the Secretary of State’s consent. In the rare cases where an academy trust’s funding agreement is terminated, the land will either return to the local authority or alternatively be reassigned, but only for educational purposes. Where the land is designated playing-field land, there are additional legal requirements in place to protect this designation.

We are very clear that we are short of land for schools in this country, so we have a very clear procedure that we do not allow schools to dispose of land unless there are exceptional reasons. As I say, there is particular protection in relation to playing fields. I hope that I have provided noble Lords with clarity and assurance on the matter of land ownership, and I therefore hope that the noble Baroness will withdraw her amendment.

[Baroness Pinnock]

I thank the Minister for that clarification, particularly relating to the school where I am a governor. However, I did not quite hear him say that if local authority land is put into an academy trust, that local authority will become a consultee in any future disposal or change of use by allowing another educational use. It would be helpful for us to understand that.

[Lord Nash]

The 125-year lease will be between the local authority and the academy trust. That lease will make it absolutely clear, as would any lease, that the land cannot be disposed of without the consent of the landlord. It is not owned by the trust but is merely a lease, so the local authority in this situation ensures that it has an absolute right of control to stop any disposal. I can discuss this further with the noble Baroness, but these lease agreements are pretty clear on that.

[Baroness Pinnock]

I thank the Minister. I hope that we might exchange some written information for some final clarity on the matter. I beg leave to withdraw the amendment.

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Moved by

[Lord Nash]

20: After Clause 12, insert the following new Clause—
“Duty to communicate information about plans to improve school
After section 5D of the Academies Act 2010 (inserted by section 12 above) insert—“5E Duty to communicate information about plans to improve school
(1) Before a maintained school in England which is causing concern is converted into an Academy, the proposed proprietor of the Academy must communicate to the registered parents of registered pupils at the school information about the proposed proprietor’s plans to improve the school.
(2) For the purposes of subsection (1)—
(a) the “proposed proprietor of the Academy” is the person with whom the Secretary of State proposes to enter or has entered into Academy arrangements in respect of the school;(b) a school is “causing concern” if it is eligible for intervention within the meaning of Part 4 of EIA 2006.””

[Lord Nash]

I beg to move.

Amendments 21 to 23 (to Amendment 20) not moved.

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Moved by

[Lord Nash]

24: After Clause 12, insert the following new Clause—
“Academies causing concern
After section 2 of the Academies Act 2010 insert—“2A Academy agreements: provision about failing schools
(1) An Academy agreement in respect of an Academy school or an alternative provision academy must include provision allowing the Secretary of State to terminate the agreement if—
(a) special measures are required to be taken in relation to the Academy, or the Academy requires significant improvement.(2) The Academy agreement must require the Secretary of State, before terminating the agreement on one of those grounds, to give the proprietor an opportunity to make representations.
(3) For the purposes of this section special measures are required to be taken in relation to an Academy, or an Academy requires significant improvement, if the Chief Inspector has given notice under section 13(3)(a) of the Education Act 2005.
2B Academy agreements: provision about coasting schools
(1) An Academy agreement in respect of an Academy school or an alternative provision academy must include provision allowing the Secretary of State to terminate the agreement if—
(a) the Academy is coasting, and(b) the Secretary of State has notified the proprietor that it is coasting.(2) The Academy agreement must require the Secretary of State, before terminating the agreement on that ground, to give the proprietor a termination warning notice.
(3) A termination warning notice is a notice requiring the proprietor—
(a) to take specified action to improve the Academy by a specified date, and(b) to respond to the Secretary of State by making representations, or by agreeing to take that action, by a specified date. (4) The Academy agreement must provide that the power to terminate the agreement on the ground that the Academy is coasting is available only if the proprietor has failed to comply with a termination warning notice (whether by failing to take specified action, or to respond, on time).
(5) The Secretary of State may by regulations provide that this section does not apply in relation to an Academy of a description specified in the regulations.
(6) “Coasting”, in relation to an Academy to which this section applies, has the meaning given by regulations under subsection (2) of section 60B of the Education and Inspections Act 2006 in relation to a school to which that section applies.
2C Sections 2A and 2B supplementary - new agreements
(1) An Academy agreement may include further provision about—
(a) the procedure for terminating the agreement in accordance with the provision required by section 2A or 2B;(b) the consequences of terminating the agreement in accordance with that provision.(2) This section does not apply to agreements made before the day on which section 1A of the Education and Adoption Act 2015 comes into force (but see section 2D).
2D Sections 2A and 2B: supplementary - old agreements
(1) An old Academy agreement is to be treated as if it included the new termination powers.
(2) A provision of an old Academy agreement that relates to the procedure for terminating the agreement does not apply to the new termination powers.
(3) Subsections (4) and (5) apply where an old Academy agreement—
(a) contains provision about the consequences of terminating the agreement (“relevant provision”), and(b) the relevant provision is expressed in a way that is capable of covering termination in accordance with the new termination powers.(4) The relevant provision applies to termination in accordance with the new termination powers.
(5) If the relevant provision sets out different consequences depending on whether the agreement is terminated on the ground that the proprietor has breached the Agreement or on other grounds, termination in accordance with the new termination powers is to be treated as termination on the grounds of breach by the proprietor.
(6) In this section—
“new termination powers”, in relation to an Academy agreement, means the powers to terminate in accordance with the provision required by sections 2A and 2B;“old Academy agreement” means an Academy agreement made before the day on which section 1A of the Education and Adoption Act 2015 comes into force.””