Academies Bill [HL]

Lord Whitty Excerpts

Wednesday 7th July 2010 Lords Chamber

Moved by

[Lord Whitty]

16: Clause 1, page 2, line 16, at end insert—
“( ) An Academy is a public authority for the purposes of the Human Rights Act 1998 and the Equality Act 2010.”

[Lord Whitty]

This amendment should be fairly straightforward. In a sense, I am on the same page as the noble Baroness, Lady Walmsley, was at the very beginning of proceedings today. It appears slightly odd that we should propose amendments that require schools to obey the law, but life is more complicated than one would think. The point of my amendment is to clarify that, for the purposes of the Human Rights Act and the Equality Act, academies are regarded as public authorities. This is important in both contexts. The noble Baroness, Lady Walmsley, got an assurance in fairly unequivocal terms on the Human Rights Act, and I should like an equivalent assurance, at least, on the Equality Act. I am proposing this in the hope that the Minister will be disposed, if not to accept the amendment, at least to give me a statement that meets the points of the amendment.

Notwithstanding what was said about governing bodies just before the break—and the Minister and others will know that I am not entirely well disposed towards this Bill in principle—I and, I think, most people in this House, would accept that the majority of governing bodies and managements of academy schools that come through this process will operate within the mainstream of educational approach and activity. Nevertheless, it is possible and, at the edges, probable, that the process of establishing academies—and even more so free schools, which will eventually be subject to the same provisions—can lead to governing bodies that are outside of the mainstream. I put that as delicately as possible. There are particular subsets of parents who have particular views on education; particular faith groups will have views on matters of gender and sexuality that are not the normal approach that would be guaranteed if the organisation were subject to the Equality Act and the Human Rights Act. We have to bear in mind that, whatever safeguards we build in, such minorities could qualify to establish a school under that process. Alternatively, it could be that the management of the school is proved to be so lax that, whatever the ethos of the governing body, it is not properly observed. I should therefore like it clarified that the requirements under the Equality Act and Human Rights Act that apply to public authorities will apply to academies, despite their slightly ambiguous position. If the Minister can give me that assurance, we can move on to the next amendment.

[Lord Wallace of Saltaire]

My Lords, we are happy to confirm, as I thought that we had in Committee, that the Government accept that academies are public authorities for the purposes of the Human Rights Act 1998. We welcome the noble Lord’s intention of ensuring that; we will, as we said in Committee, ensure that academies are included in Schedule 19 to the Equality Act 2010. As the noble Lord will know, academies as independent educational institutions will be required to comply with all the duties in the Act that apply to schools more generally with respect to non-discrimination, reasonable adjustments for disabilities and the like, including gender issues. Academies are not currently included in Schedule 19, but the schedule will be updated before the duties come into force in 2011 and academies will be included in time for that commencement. Therefore, by the time those duties are implemented, it will be clear that an academy is a public authority for the purposes of the Equality Act.

With that clear reassurance, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Whitty]

My Lords, I am grateful for that clear assurance. I shall not even pursue the avoidance-of-doubt argument. I shall accept the Minister’s remarks in good faith, and am very grateful for them. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

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Moved by

[Lord Whitty]

25: Clause 3, page 3, line 7, at end insert—
“( ) Before making an application for an Academy order, the governing body shall, over a period of at least 6 weeks during term time, consult the following on whether to make the application—
(a) pupils at the school,(b) the parents of pupils of the school,(c) the parents of pupils at any other school from which at least 10% of the pupils have come in the previous 3 years,(d) staff at the school,(e) trade unions representing staff at the school, and(f) the governing body of other schools within its area which might reasonably be considered to be affected by the making of an Academy order.( ) In that consultation, the governing body will make available in writing at least the following information relating to the proposed Academy—
(a) details of the proposed Academy arrangements,(b) details of the proposed governance arrangements including details of the directors of the company which will enter into the Academy, arrangements and details of the composition of the governing body,(c) details of the arrangements for the curriculum, for admissions, for special educational needs, for pupil discipline and exclusion and for complaints,(d) details of any arrangements by which any other person will provide the education the proposed academy including details of the extent to which such arrangements will allow for that other person to make a profit from doing so,(e) details of any additional money which would be available to the school (either as capital or revenue funding) if it became an Academy, (f) details of any additional obligations which fall on the school if it became an Academy, and(g) details of the criteria which the Secretary of State would apply in deciding whether to make the Academy order.The governing body will take all reasonable steps to enable suporters and opponents of the proposal to circulate materials relating to the proposed application for an Academy order to other consultees.”

[Lord Whitty]

My Lords, in moving Amendment 25, I shall also speak to Amendments 26A and 28 in my name and to Amendment 26 on behalf of my noble friend Lady Royall, which I support. I shall also give some comments on the government amendment and the amendment to that. It is a difficult time of night to come to what I regard as one of the most important aspects of the process of setting up academies that is implied in this Bill. I shall try to be short, but I shall not be as short as all that.

We have had some debates on this matter but I fear that the Government, even with the amendment that they have put down for today, have moved nowhere near as far as is necessary. Whether we are in favour of academies or not, whether in general or in a particular instance, we would all recognise that the conversion of a school that has hitherto been a maintained local authority school into an academy is a momentous event. It is important for the pupils and parents of the school as well as for the staff of the school, which will have a different relationship with the local authority that no longer has oversight and no longer provides most of the services or administrative support. That is particularly important for the smaller schools in this category. It will change that relationship and there will be a different sort of relationship, both in terms of the powers of the governing body and the Secretary of State. After all, although the academies programme is portrayed as being a devolution of power, in reality these schools had previously been governed or overseen by a local authority and are now going to be funded, regulated and to some extent controlled by central government. That is not a move that either of the coalition parties was advocating to the electorate a few months ago—but there we go.

If this Bill goes through in more or less its present form, as undoubtedly it will, there is no current provision in the present draft of the Bill for consultation. I submit that there is a requirement for consultation at two points. There should be a requirement on the governing body proposing the change and a requirement on the Secretary of State in taking a view on that proposition. Neither is in the Bill at present. It is important, therefore, that we lay down requirements for consultation at both points. My first amendment does that in some detail. It may be argued that we do not need that degree of detail, and in normal circumstances I would probably have agreed. However, there is no general proposition coming from the Government that the governing body should consult.

The pupils are important—not only the current pupils and their parents but future pupils and parents. It is the whole community; it is schools that could be affected by the abstraction of one outstanding school from the community into a different form of control that will have an effect on the relative status and indeed, in practice, on the relative funding for that school against other schools in the neighbourhood. This could have profound effects on the town. This is why by and large I am in favour of maintaining local authority oversight rather than bringing in central government.

If we are going down this road, however, there needs at least to have been consultation with the parties that will be desperately affected by it. That consultation needs to set down what the broad provisions of the new arrangements are going to be. What will the governance of the school be? What will the changes in the curriculum be, broadly speaking? What other parties might be involved in the provision of education to the children of the neighbourhood? What financial provisions are there going to be, and what are the new obligations on the school?

My amendment sets all that out. It is conceivable to argue that that should be in a code or in secondary regulations rather than in the Bill. I would normally accept that argument, but only once the Government had come to the position of saying that the primary requirement for consultation is laid down in the Bill itself.

It is also important that the Secretary of State has some obligations in this area as well as the governing body. The Secretary of State is making the final decision. He is drawing up one side of the agreement both on funding and on the other provisions that will come in the charter for the school. It is therefore important that we have a Secretary of State able to consult independently with the major parties, particularly with the local authority.

My second amendment relates to the role of the local authority. Even those local authorities that are by and large in favour of the academies programme need to have the ability to tell the Secretary of State what the implications of this will be for education provision throughout their area of jurisdiction. If an outstanding school in a town is being taken out of local authority oversight, the local authority needs to have the ability directly to tell the Secretary of State or his officials what the effect of that will be. We therefore need to have a secondary level—or possibly a more important level—of consultation about who the Secretary of State should speak to.

I have stripped that part of my amendments down to the absolute minimum. I do not list anyone else except the local authority. I expect the local authority to have taken into account both the consultation that the governing body will have conducted and its normal relations with parents and providers within the local authority area. If localism and devolution mean anything, the views of a local authority that is losing an outstanding school must be taken into account before the Secretary of State can reasonably sign off on that academy order.

My amendments, taken together with Amendment 28, which deals with the Secretary of State setting out the criteria by which he has judged whether the order should be issued, would give all the parties to the agreement—all the parties to the school, if you like—the opportunity to give their views as well as an understanding of what is involved and what changes will affect their children and their neighbourhood, along with a balanced view to be taken by the governing body in the first instance and by the Secretary of State. Without specifically providing that the Secretary of State should consult local authorities, that relationship breaks down and this whole provision begins to look as if it is likely to lead to conflict rather than to a smooth change.

Everyone in this Chamber knows that I am not particularly in favour of the process, but if we are going to have it, we need to do it in a way that ends up with the maximum possibility of co-operation between all those concerned. To do that, you need consultation up front before the final decision is taken.

I fear that the Bill does not do this. We need to ask why. I suspect that the good intentions of the people in the education team—the Secretary of State, the noble Lord and others—mean that they would, in slightly different circumstances, have written these provisions into the Bill. The problem is that the Secretary of State said, “All this has to be started by September. We have to write to several thousand schools, get their letters in and decide by September”. That timetable is complete nonsense. It has left the Government very exposed. I am sorry for them—I am sorry for the Minister that he has to defend it—but it is not sensible. If we want in two or three years’ time to have a large number of academy schools without conflict and without outstanding issues still to be resolved and blamed on the Secretary of State, let us have that consultation and engagement up front. If the Secretary of State should somehow back off the September date—I promise not to make a big thing of it—we would have plenty of time to sort these things out. I beg the noble Lord to talk to his colleague to see whether we can go back a bit in the light of arguments that have been made in this Chamber and elsewhere; indeed, I suspect that the Secretary of State will hear similar arguments in another place.

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[Lord Wallace of Saltaire]

My Lords, the noble Lord is in the 15th minute of a speech on Report, which is a little long.

[Lord Whitty]

I accept that it is a little long, although I did warn the House, but it is actually only the 12th minute and this is an education Bill. I beg to move.

[Baroness Walmsley]

My Lords, in his Amendment 25 the noble Lord, Lord Whitty, replicates probing amendments that were tabled by at least three Members of this House in Committee and about which we had long discussions. As a result, the Government have come back with a very sensible amendment, accepting our feeling that we should insist that schools consult the most appropriate people. The words,

“such persons as they think appropriate”,

are particularly right in the light of what I have just heard from the noble Lord, Lord Whitty. He suggested that we should list the future pupils of a school as being appropriate to consult. How far in the future are we talking about? What about children in the womb or the parents of children who may at some stage go to that school but who may have moved 50 miles away by the time the child is born? That is nonsense. To list the various organisations and groups of people who should be consulted is the sort of thing that the noble Lord’s own Front Bench resisted on many occasions.

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[Lord Whitty]

As a matter of clarification, does the noble Lord not accept the amendment to his amendment tabled by the noble Baroness, Lady Walmsley?

[Lord Hill of Oareford]

My Lords, I commend Amendment 30.

[Lord Hill of Oareford]

The amendment arose out of our debate about concerns relating to the potentially large number of converting schools. With the amendment that I have tabled in response to the point made by my noble friend, I hope that we have met the concerns that were raised about the impact of free schools. A free school, which is going to have to demonstrate parental support, will, by definition, have had to carry out a large amount of consultation.

[Lord Whitty]

My Lords, I thank noble Lords for this interesting debate. The Minister’s position appears to be that his Amendment 30 stands. He has not told us whether he is accepting the noble Baroness’s Amendment 31, which would make his amendment slightly more acceptable with regard to the governing body’s responsibilities. I am being told that he has quite clearly rejected it.

[Baroness Walmsley]

My understanding, as the person who spoke to Amendment 31, is that my noble friend has said that he does not wish to accept it. My view is that it is desirable but not essential and I shall not be moving it.

[Lord Whitty]

That clarifies that matter, and it underlines my position in one sense. I do not believe that the Minister has gone far enough to persuade us not to pursue this matter, in that his amendment does not go far enough. It allows for consultation to take place only right at the end of the process, whatever is on his website in terms of guidance, which is no doubt desirable but not statutory or regulatorily required. It does not cover the Secretary of State’s responsibilities and nor, as the noble Lord, Lord Phillips, said, does it explicitly cover the situation relating to free schools. Therefore, it is deficient, and I ask the Minister to consider coming forward at Third Reading with a more comprehensive amendment on consultation. The rules of procedure do not allow him to answer that but it seems to me that I ought to allow him the opportunity so to do.

I shall not press my Amendment 25 on the grounds that to some extent I accept that it is too prescriptive. I think that my Amendment 28, which would require discussion with the local authority, could be taken care of by the Minister coming back with a more comprehensive amendment. My noble friend Lady Royall will no doubt decide whether to move Amendment 26, which is not as prescriptive but does deal with the central issues of timing and widespread consultation.

At this time of night I am not going to win a vote, although I consider that I have won the argument. I think that the Minister needs at least the flexibility to consider everything that has been said and to come back with a better amendment at Third Reading—one which does not include lists of people but which allows some flexibility in the process and clearly imposes on both the Secretary of State and the governing body a degree of consultation. I hope that he will hear what I say in that regard. In the mean time, I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

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Moved by

[Lord Whitty]

51: Schedule 2, page 18, line 32, at end insert—
“In section 237 (orders: supplementary) after subsection (3) insert—
(3A) An order under section 233(2)(d) or 234(2)(b) may also make provision by reference to actions taken or to be taken pursuant to Academy arrangements.
(3B) An order under section 233(2)(d) or 234(2)(b) or (4)(b) shall be formulated so as to apply to support staff employed to work at Academies with the same effect as it applies to staff employed to work in maintained schools.”
In section 238(3) (guidance) after paragraph (b) insert—
“(c) the governing body and proprietor of an Academy”.In section 240(3)(a) (school support staff) at end insert “or is employed under a contract of employment providing for the person to work wholly or mainly at an Academy in England”.
In section 241 (general interpretation) after “Chapter—” insert—
““academy” means an Academy within the meaning of the Academies Act 2010,
“Academy arrangements” means Academy arrangements within the meaning of the Academies Act 2010.””

[Lord Whitty]

My Lords, it is a bit of a forlorn hope that I can capture the Chamber’s attention at this time of night for a group of people who have not been mentioned at any other point during today, although they were mentioned at an earlier stage by the noble Baroness, Lady Sharp. I am very much on the same wavelength as her.

Among the groups that my amendment on consultation would cover are the teaching staff in general and teaching support staff in particular. This has been an area of expansion of employment in schools—in old jobs such as school secretaries and wider management roles, and in new jobs such as classroom assistants, paraprofessionals and other specialists. Because they are a relatively recent phenomenon, the terms and conditions under which such staff are employed are variable and are not on the same basis as other groups of staff within schools and local authorities.

Local authorities of all political persuasions, the LGA and the unions got together over the past three years to establish the support staff negotiating body and establish a national framework for the terms and conditions of such staff. This has proved beneficial to the management of schools which previously had found difficulty in having to manage individuals under separate terms. In some cases, there were serious conflicts.

This is not just a trade union point; it is a point about how smoothly schools can be managed and how we can avoid conflict in those schools. The problem of when academies are created under the Bill is that without consultation and the normal processes, public servants will be transferred into what will, in effect, be the private sector in terms of the employers they have to deal with. There would be an element of stability in that process if academies were to remain in the support staff framework. It is true that existing academies do not have to be in that framework, although they can opt to be, but it would be helpful to the management of schools which will face all sorts of more complex matters of self-management, once they become academies, if they were to remain or be assumed to remain within that structure.

When the noble Baroness, Lady Sharp, raised this at an earlier stage, she was told by the Minister that it was not deemed appropriate since the market would determine the rates—that would be the situation with teachers and what was good for teachers must be good for all other staff. Actually, it is the opposite situation. Academies will compete for teaching staff who are specialists or good teachers or teachers in subjects where teachers are scarce and thereby improve their conditions above the norm. In the area of support staff, what is likely to happen is that they will undermine what has previously been the rate in the continuing maintained schools in the local authority area, and will provide pay and conditions that are worse than they were prior to conversion to academy status. That will cause unnecessary conflicts between the management of the schools, the staff and in most cases their unions.

This amendment would provide an element of stability. I hope that the Minister will consider the implications as we go forward with the Bill. I beg to move.

[Baroness Morgan of Drefelin]

My Lords, I am delighted to support my noble friend's amendment. It may be late, but the contribution that support staff make to our country’s schools is worthy of significant attention. In Committee, I and the noble Baroness, Lady Sharp, reminded noble Lords of the important role of support staff, and I am delighted to support my noble friend's analysis of the challenges that they face with a major expansion of the academies programme. This amendment provides a framework that is markedly different from the national negotiating body that the Minister referred to in Committee. When one looks at the contribution that the 123,000 new classroom assistants have made across the school system, it is important that we take all possible steps to maintain stability in the workforce. A framework such as this would contribute to that. In the past, as the noble Baroness, Lady Sharp, eloquently said, support staff have been undervalued, and we should put in the work to create a new school support staff negotiating body. A lot of work and thought has gone into defining the roles and contribution that the staff make, and this could be a great support, particularly to small academies such as the primary academies that some noble Lords have been concerned to promote. I hope that the Minister will support this approach.

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[Lord Whitty]

My Lords, I am not surprised but am gratified that the Minister did not read out his entire brief. However, he did get us past midnight and I congratulate him on that. It is the first time in this Parliament that I have been in the Chamber at this hour.

The Minister is right to say that the pay is not brilliant in the sector at present, but the framework that was agreed across the country has made the situation much more stable both for staff and for their employers. That was reflected in the Apprenticeships, Skills, Children and Learning Act 2009, which of course has a statutory base and came into force after the previous Government’s academies programme had started. Therefore, we are now faced with a framework which has a statutory base, as well as being a voluntary agreement. As my noble friend Lady Morgan said, it does not precisely lay down the pay rates but it gives a framework within which employers can operate. I should have thought that that would be useful, as my noble friend also said, particularly if smaller academies come through the process in the numbers that the Government hope for.

I would have hoped that the Government would look more favourably on my proposal but, for the moment, and at two minutes past midnight, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.