Academies Bill [HL]

Lord Whitty Excerpts

Monday 21st June 2010 Lords Chamber

[Lord Bew]

My Lords, I shall address some of the issues raised by the noble Lord, Lord Phillips of Sudbury, in his Amendment 4. Much of this is an issue of context. I was struck by the example of the case in Sudbury, which he gave in his speech at Second Reading. It is of concern that what we are doing with this new second phase of the academies project will leave certain schools and communities behind.

However, I want to suggest an angle of vision on this which I hope will be helpful in a small way to the Committee. If you look at a very traditional elitist system such as that which prevails in Northern Ireland—the grammar school system—which is different markedly from the system that is being discussed, although there is a small grammar school element to it, you will see that the results achieved at A-level and GCE are by far the best in the United Kingdom. At the bottom, the results are not so good—but nor are they now so divergent from those in England. Girls are actually doing better in Northern Ireland. Boys in Northern Ireland are doing worse than in England. However, those results tell you something: the way that our system has evolved over a generation or more is that we now accept that Northern Ireland will for ever lead the academic attainment lists at the highest level in the United Kingdom unless there are changes in policies. They tell you that at the bottom level this elitist system is not as bad in relation to England as we once thought it was. It is actually very close indeed. It is bad to be at the bottom level in England and in Northern Ireland.

The point I am trying to make is that the Northern Irish grammar school system, for all its many joys, was not formed in a political culture whereby a Minister for Education talked, as he was talking today, about using the state as a weapon for equity. In other words, the context is enormously important. It is important that the context is right when we discuss these questions and that the policy of the Government is directed towards greater equality of opportunity, which seems to be, as the noble Lord, Lord Phillips, conceded, where the Minister is coming from. He may not be quite the Marxist-Leninist that the noble Lord, Lord Greaves, talked about, but none the less that seems to be the approach. The status quo is leaving people behind. We already have a segregated system. The status quo is already having negative effects, and the noble Lord, Lord Phillips, whose point about unintended consequences I accept, is rightly concerned that they will become more marked as side effects of this new system.

[Lord Whitty]

My Lords—

[Baroness Walmsley]

My Lords, if I may—I have some amendments in this group. I should like to speak to Amendments 98, 136 and 177. I also intend to speak to Amendment 137 along with Amendment 98, as they go together. I apologise that with all the toing and froing with the groupings this morning, I did not notice that Amendment 137 had not been included in this group. However, I believe that I am able to speak to it all the same.

The purpose of Amendments 98 and 137 is to probe the application of the school governance procedures regulations 2003 to a resolution by the school governors to apply for academy status. The current regulations provide for special procedures for important governing body decisions about the future of a school—particularly ones such as this, which would lead to a decision by the local authority to discontinue supporting the school. The special procedures currently include a requirement that the decision cannot be delegated to a committee or individual, and the chair cannot direct that a period of notice shorter than seven days be given for a governing body meeting. Indeed, in certain cases, a second governing body meeting must be held within 28 days to confirm the original decision.

Therefore, can the Minister confirm that a decision to apply for academy status cannot be delegated to an individual governor or even a small committee of governors? Will the regulations require the local authority or parents to be informed of the date when the governing body proposes to make a decision? Should not the regulations be amended to this end if they do not already do so?

Amendment 136 is a different way of dealing with the same matter. Clause 5(9) disapplies current legislation. Conversely, if we remove subsection (9), as Amendment 136 does, the current situation regarding consultation, safeguards and time periods and so on regarding who can make the decisions remains.

Amendment 177 would insert a new clause that would extend to academies a current duty on the governing bodies of maintained schools in England to promote community cohesion in the discharging of their functions. The noble Baroness, Lady Royall, touched on this in the earlier debate on consultation. I well recall our debates during the passage of the Education and Inspections Act 2006, which introduced a duty on all maintained schools in England to promote community cohesion and on Ofsted to report on the contributions that they make in this area. Both these duties have now commenced.

Governing bodies of existing new Labour academies are not subject to the same duty to promote community cohesion as applies to maintained schools, despite our protestations, as I recall, when the Bill went through your Lordships’ House, yet from September 2008 their contribution to community cohesion has been reported on by Ofsted. I think it is vital that the new academies are also required to promote community cohesion, especially where they are located in areas where the community is very diverse. This is particularly important given the concerns that academies may increase social division and inequality, rather than reduce them, which of course is the intention of the programme. That is not how we want academies to be. They should be part of, and serve, the local community.

On the question of new 16 to 19 providers, mentioned by the noble Baroness on the opposition Benches, I think that if an academy extends the age range which it intends to serve beyond that which it had when it first applied to be an academy, there may very well be a case for having to go back to the Secretary of State to renegotiate the terms of the academy agreement. Can the Minister let me know whether that is the Government’s intention? It would be a major change in the academy’s provision and the original consultations would no longer be legitimate.

[Lord Whitty]

My Lords, I, too, have tabled amendments in this group—Amendments 116, 117, 119 and 129. Since this is the first time that I have spoken on this Bill, I welcome and congratulate the Minister on his position and the way in which he has hitherto dealt with the Bill. However, I cannot give the same welcome to the Bill itself. He needs to know that I have fairly fundamental objections to it, which may appear from time to time. It may have a rougher ride as we go forward.

It is true that I also had some reservations about the previous Government’s academies programme, contrary to the position of the Front Bench and other colleagues. However, it was very different—it was different in execution, although some would say that it was not that different in ambition. In execution, the Labour Government, with their fewer than 300 academies, recognised that there were failing schools, or at least schools that were underperforming in educational terms, and that there were areas of social deprivation, which was detrimentally affecting educational attainment. The Government used the academies as a way of compensating or intervening at the extreme end of special measures. That I can understand. In a sense, it was a comment on the failure of local authorities and the governing bodies that central government had to take them over. In general, I believe that the education of a community’s children ought to be the responsibility of the local authority elected for that community. It is only in very specialised and specialist cases that you would override that.

That is a political and an educational principle. It is an educational principle for reasons to which the noble Lord, Lord Phillips, has just referred. A change in the status and the relative resources and attention given to one school will have a knock-on effect on other schools. Sometimes it might be beneficial, but it will undoubtedly have a knock-on effect.

The record on Labour academies is mixed. Some have been very successful; some have improved, though it could be argued that they could have been improved by less drastic interventions; and some have failed or nearly failed. The case is not yet fully proven. To take away from local authorities the responsibility for educating their populations, which they have had for well over a century, is a very drastic move. In this short Bill we are changing the provision of education in this country.

This depends on initiatives being taken by the school and on the attitude of the Secretary of State to the application of the school. However, the ambition has been clearly laid out by the Minister and the Secretary of State. They want a large number of schools to opt out of local authority oversight. I say “oversight” and not “control” because local authorities have not managed schools for many years. They have supported schools and given them administrative support, help in specialist matters and special needs, and help in many other areas, but they have not managed the schools in the way which is sometimes implied by the criticism of the current system.

The Bill is taking a big step to remove the relationship between schools and the local authority. I appreciate that I am not going to be able to persuade the Government or the coalition—or at least most of the coalition—that this is the wrong way to go. But if we are to go down that road, it is essential to reassert the role of the local authority. We had a debate just before the break about consultation. I take some of the points from my noble friend Lord Adonis and others that to prescribe exact forms of consultation in primary legislation can lead you down difficult paths and that perhaps it is better covered by a code, guidance or, certainly, practice by the Secretary of State and those who are promoting academies and free schools.

The one bit of consultation that I do not believe you can escape is consultation with the local authority. The local authority might in some cases agree that it would be a good thing to have an academy. It would certainly have views on it and it would certainly have views that are informed by the impact on the rest of education in the area of its oversight. My first amendment is my ideal. Amendment 116 says that the local authorities should be consulted and should agree the proposals.

I appreciate that that is fairly close to cloud-cuckoo land, given the Government's intentions. In any case, if there was a disagreement between the local authorities and the Secretary of State, you would have to build in an arbitration process. I have therefore given the Government an alternative, which simply states that there is an obligation to consult the local authority.

Personally, I think that if that is not inserted in some form into the Bill, it will be greatly flawed. I suspect that it will make for a difficult ride in another place if local authorities are not written in, so I therefore strongly advise the Government that if they are to continue to go down that road, they ought at least to recognise the special role of local authorities in that respect.

I also take the point made by the noble and learned Lord, Lord Mackay, before the break, but perhaps the obligation to consult ought to be not on the party proposing the school but on the Secretary of State him or herself. At the end of the day, the Secretary of State will have to make the judgment and explain to Parliament whether an effective consultation has taken place, so I place the responsibility not on the proposers but on the Secretary of State. That makes sense.

My Amendment 119 goes further to state—in a sense, with the same motivation as the noble Lord, Lord Phillips—that there should be an assessment of the effect of taking a prospective academy out of local authority oversight on the rest of the educational provision in the area. Where it differs from the intention of the noble Lord, Lord Phillips, and probably therefore avoids the objection of my noble friend Lord Adonis, is that it simply states that there should be an assessment. That assessment, or at least its conclusions, should probably be available publicly—although the amendment does not state that—but it still leaves the final judgment to the Secretary of State, whereas the amendments of the noble Lord, Lord Phillips, would prescribe something that is difficult to define, as my noble friend said. Nevertheless, I think that the noble Lord and I are both on the same page here: before we move to approve an academy, an assessment needs to have been made as to the effect that will have on the total educational provision in the area.

I hope that the Government take some notice of the amendment. Personally, I find it very difficult that in the name of removing the burdens of red tape from head teachers and governing bodies, we move from a system of local authority oversight to one of centralised funding, centrally regulated. The red tape which has undoubtedly been imposed on the teaching profession by successive Governments over the past two or three decades has largely emanated from central government and their agencies, not from local government. The relationship with local government has been, by and large, constructive. We ought to maintain that. Even if we are going for change which some local authorities may approve of, there must be a vital role for local authorities in that process.

My final amendment simply gives some flexibility on timescale, so I will not go into it in great detail. The key point here is that local authorities must be present under the Bill to be consulted, engaged and involved, reflecting the impact of a decision on one school on the totality of education in their area.

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[Lord Whitty]

I owe the noble Lord, Lord Baker, at least a brief response since he took us back not only to 1988 but to the 1950s. I read his article about technical colleges and I have some sympathy with it because, for the record, I am strongly in favour of local authorities. But that does not mean that I am against choice and diversity of provision. I do not think that the local authority has to provide everything or that everybody who works at the local authority school has to be employed by the local authority. That is not my position. My position is that the local authority should have oversight. The local authority is responsible for the community and the future of that community. However, the amendment that the noble Lords, Lord Phillips and Lord Greaves, and I are proposing is much more modest. It simply says that the local authority should be consulted, and that these things should be taken into account.

Despite a wide-ranging difference of ideological approach between the noble Lord, Lord Baker, and me, the actual answer to these amendments is relatively restricted. It emphasises the importance of local authorities. Unless the Bill keeps in mind that local authorities are big players in this game, there will be conflict and difficulties.

The other point that I would make to the noble Lord, Lord Baker is that much of what he was describing is not what is being proposed by this Government but what was being enacted by the previous Government. In other words, they were seeing schools that were failing and areas where the local authority was performing badly overall. They introduced academies into that context. I do not totally agree with it, but I sympathise and understand the motivation for that. But what the Minister and his boss Michael Gove are proposing is almost the opposite. They are saying that all schools can apply, but they will take the outstanding ones first. They will automatically take the outstanding schools away from the role of the local authority and leave it to manage the less good schools.

That is an inversion of how the noble Lord, Lord Baker, described the motivation for establishing academies. To some extent, it is an inversion of what the previous Government were attempting to do with the academies that they established. That is the part of the strategy I object to. But I repeat that our amendment is much more modest. I hope that the Minister can at least accept one of our amendments.

[Lord Bates]

My Lords, we should be grateful to the noble Lord, Lord Phillips, for tabling Amendment 4 and giving us the opportunity to look again at Clause 1(6)(d), because there is a potential difficulty for the Government down the line. We intend to provide freedom for people to establish schools, yet paragraph (d) says that,

“the school provides education for pupils who are wholly or mainly drawn from the area in which the school is situated”.

The noble Lord, Lord Baker, has just spoken. Of course, the city technology colleges were successful because they did not have that restriction. There was nothing to say that they had to “wholly or mainly” draw pupils from the area of the school. Therefore, they could draw them from a wider area, which was how they became beacon schools.

From my reading, Swedish schools are not subject to the same restrictions in terms of having to draw from very narrow boundaries. There is a potential risk, particularly in the primary sector as distinct from the secondary sector, of deleterious effects on neighbouring schools. I ask my noble friend to look again at the wording of that clause and see whether “wholly or mainly” needs to be included or whether a general statement about pupils being drawn from the area in which the school is situated would suffice.

--- Later in debate ---

[Lord Hill of Oareford]

We will have one colour for the coalition. I thought that the letter had been made available in the Library. If it has not, I will make sure that it is. I will still give my noble friend his own special copy.

It is our view that all schools should be free to apply to become academies, subject to the decision of the governing body and its foundation where appropriate. That does not mean that all schools will be approved to become academies. Some schools may not meet the criteria of acceptability or show sufficient evidence that they will be able to deliver an acceptable level of education. Some may not show evidence of enough demand to make them viable. We will consider each case on its merits in the light of the situation in that area.

Amendments 116, 117 and 129 would require the local authority to be consulted about several aspects of the conversion process. I have already set out our view in this respect. We do not want to be in a position where a local authority could veto the process.

[Lord Whitty]

I gently say to the Minister that, yes, one of my amendments would give local authorities a veto but another would not, and nor would those of the noble Lords, Lord Greaves and Lord Phillips. Consultation is not a veto. Ministers in this Government will find that all sorts of statutes require Ministers to consult before they make a decision. It is a bit irritating. At the end of the day, Ministers can ignore it or override it, but at least they have gone through the process. That is all we are asking for here.

[Lord Hill of Oareford]

I understand the point that the noble Lord, Lord Whitty, makes. I stand corrected. Amendments 119 and 191 propose an assessment of the educational impact of each academy conversion before it can go ahead, and a pilot process to make similar assessments over several years. Academies are not a new phenomenon. We know that that they have achieved great things over the years. They already work in partnership with other local schools. They make sensible and co-operative arrangements with local children’s services. If we were newly introducing academies, these proposals might well be worth considering very carefully, but we are not. We are, therefore, not convinced that they are necessary.

Amendment 177 would require academies to promote community cohesion. That is obviously, in broad terms, a worthy aim. The question is, how do we see this being achieved? As a condition of grant, an academy is already required by its funding agreement to be at the heart of its community, sharing facilities with other schools and the wider community. Future academies will continue to be under this obligation.

I am mindful that somewhere in these amendments was Amendment 137, tabled by my noble friend Lady Walmsley. She asked about the delegation of decisions to an individual governor. We would not expect governing bodies to delegate decision-making in connection with an application for an order to an individual. We would ensure that our system required governing bodies to forward to us a copy of the minutes of the governing body meeting so that we can be satisfied in that connection.

Amendments 76A and 92A deal with post-16 arrangements in academies. I hope that noble Lords will be reassured to hear that where we are being asked to fund an expansion of post-16 provision in an academy we will require the academy to make a strong case for expansion and to show that other local providers have been consulted, but we are not convinced that such a requirement needs to be in the Bill. Recurrent funding in academies, including for sixth-form provision, is formulated to ensure that academies are no better off and no worse off than maintained schools for the provision of similar services. However, as we know, they receive funding to buy in services from a local authority or another provider where these will no longer be provided free of charge to the school. A cap that prevented academies from receiving funding for these services would leave academies worse off than maintained schools.

In light of the general discussion that we have had about the role of the local authority, I urge all noble Lords to withdraw their amendments.