Third Reading
Academies Bill [HL]
3:07 pm

Clause 1 : Academy arrangements

Amendment 1

Moved by Lord Hunt of Kings Heath

1: Clause 1, page 2, line 9, at end insert-

( ) the parent governors of the school are elected by the parents of children at the school."

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My Lords, in Committee and on Report, we had interesting discussions on the role of governors. Over the past 10 to 30 years, we have seen governing bodies take on major new responsibilities. The governors have given a great deal of time and I am sure that noble Lords will acknowledge that we should be grateful to them for their contribution and work.

Academy status will bring even more responsibilities to those governing bodies, and we on this side think it important that parent governors play a full role in their deliberation. In Committee and on Report, we debated the proportion of parent governors who ought to be on a governing body. However, in the course of the debate on Report, the noble Baroness, Lady Sharp of Guildford, asked for an assurance that however many parent governors there will be on a governing body, they should be elected by the parents of students at the school.

On Report, the Minister promised to look into this point and my amendment presents an opportunity for him to respond to it. I beg to move.

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

My Lords, my noble friend knows how very much we, too, believe in the importance of parent governors. The Minister was kind enough to send us the model funding agreement, but he will be aware that annexe A, which is the memorandum and articles of the academy trust, was not attached to it. The previous model, from the previous Administration, required at least one parent governor to be elected. Can the Minister confirm that that will be in the model when it is published? As the noble Lord, Lord Hunt, said, the Minister confirmed in response to a question from my noble friend Lady Sharp at col. 260 on 7 July that there will be elections for parent governors. I hope that he will be able to confirm that further today.

However, the Labour amendment is not helpful to new academies as it does not allow a parent to be appointed in the run-up to the opening of a new academy, as did the previous articles. That would be a very desirable time to have a parent governor, while the new school is taking shape, but the amendment would not allow for that. I do not know whether the noble Lord has taken that into account.

Photo of Baroness Howe of Idlicote

Baroness Howe of Idlicote (Crossbench)

My Lords, it will not surprise your Lordships to know that I fully support the amendment, and would be grateful for the additional reassurance asked for by the noble Baroness, Lady Walmsley: that, at least in the old academies, as it were, there will be elections. Sadly, I remain unconvinced that we do not need to specify a number of parent governors to be represented on the board, which was be the whole purpose of my previous amendments. I will not go into that again, because we are on Third Reading, but I would love to have more reassurance from the Minister.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, I am grateful for the points that have been raised and believe that I can provide that reassurance. First, I echo the point made by the noble Lord, Lord Hunt, about the importance of governors, which is accepted across all sides of the House. The point that lies behind the amendment has been raised in debate before, and I apologise if I have not made the situation sufficiently clear. The arrangements for the collection of parent governors are set out in the articles of association of the academy trust, which are agreed between the academy trust and the Secretary of State. Those articles are annexed to and form part of the funding agreement, which, as we know, is what controls the relationship between the Secretary of State and the academy, and always has done.

The model articles state that-I am sorry if this was not appended to the model funding agreement:

"the Parent Governor(s) shall be elected by parents of registered pupils at the Academy. A Parent Governor must be a parent of a pupil at the Academy at the time when he is elected".

The articles therefore make clear, first, that the election of governors should be by parents of pupils attending the academy and, secondly, that parent governors must be drawn from among the parents of pupils at the academy. Those are the current arrangements for the election of parent governors in academies, and I believe that they are known to be effective.

The articles of association of an academy trust cannot be amended without the agreement of the Secretary of State, so the position as set out in the articles cannot be unilaterally changed by an academy. The previous Government argued and accepted that the funding agreement was the right place to deal with issues of that kind, and I agree with them. We do not need a requirement in the Bill of the sort set out in the amendment. That said, I take the point that the noble Lord, Lord Hunt, just intended to clarify the situation. I hope that that has done so and provides reassurance to all noble Lords who have raised the point. With that, I urge the noble Lord to withdraw his amendment.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My Lords, I am grateful to the noble Lord for that; it very much reassures me and other noble Lords. The noble Baroness, Lady Walmsley, raised the question of new schools, which do not have an existing governing body. It would be difficult to see how you could include the parents of children who have not yet enrolled in the school, but perhaps that takes us to consultation issues that would probably be better dealt with in a later debate. In not pressing the amendment, I should say that the overall view of many noble Lords is that the stronger the parental involvement in academy governing bodies, the better.

Amendment 1 withdrawn.

Clause 2 [Payments under Academy agreements]:

Amendment 2

Moved by Baroness Wilkins

2: Clause 2, page 2, line 43, at end insert-

"( ) In Schedule 1 to the School Finance (England) Regulations 2008, after paragraph 8 insert-

"8A Where a child is a registered pupil at an Academy, expenditure in respect of services for making provision for pupils with low incidence special educational needs or disabilities."

( ) Where a local authority fails to secure satisfactory provision for pupils with low incidence special educational needs or disabilities, the Secretary of State may make alternative arrangements."

3:15 pm
Photo of Baroness Wilkins

Baroness Wilkins (Labour)

My Lords, this amendment is also tabled in the name of the noble Baroness, Lady Howe of Idlicote. Both in Committee and on Report I have spoken about my concerns that a large increase in the number of academies will have the unintended consequence of dispersing funding for children with low incidence or complex special educational needs. As a result, vital support services for these children and their parents will become untenable, and there could be large numbers of deaf and blind children and others with multi-sensory impairments who do not get the support they need.

These concerns have received the support of all sides of the House and I am grateful to all noble Lords who have spoken. They are also shared by the National Sensory Impairment Partnership, the Special Educational Consortium and, particularly, the National Deaf Children's Society, RNIB and Sense. I should like to thank the noble Lord, Lord Hill, and his officials for taking the time to meet with me yesterday afternoon, as he offered to do on Report, and it is therefore with regret that I must speak again to say that these concerns have still not been addressed. Sadly, while the Government are willing to recognise that the problem is real, they have shown no real urgency in coming up with a way forward. As the Special Educational Consortium points out in its briefing, the Government should recognise that there is a need to address the impact of the Academies Bill on individual children currently receiving specialist provision when a number of schools convert to academy status in September 2010.

I am alarmed that the Government should seek to pass this Bill knowing that potentially it could damage the educational prospects of some of the most vulnerable children in the country. The number of children may be small and the impact may not be immediate, but that is no excuse for failing to come up with a solution that will reassure parents and children that they will get the support they need. The National Sensory Impairment Partnership believes that the Government should set up a working group to consider solutions. The working group should be time-limited and have clear terms of reference to consider this issue and make urgent recommendations. The group must be led by Government and its recommendations must be communicated by the Government to all local authorities and schools across the country. I stress that the working group should also include representatives of the parents of children with sensory impairments, and I strongly urge the Government to accept the recommendation.

I hope that the Minister can give a positive reply before the Bill moves to the other place. But in the absence of that positive response, I have spoken to Members of the other place who have said that they will continue to raise this matter until we are certain that the educational prospects of disabled children will not be damaged by these proposals. I beg to move.

Photo of Baroness Howe of Idlicote

Baroness Howe of Idlicote (Crossbench)

My Lords, I also support this amendment, as I have done on previous occasions. It is sad indeed that the Minister has not yet been able fully to satisfy our concerns. Disabled children and those with SEN often need specialist support to ensure that they achieve positive learning outcomes. These services are crucial for pupils with a wide range of disabilities and have a unique role to play in the education of children with low incident disabilities such as blindness, partial sight and hearing impairments.

Specialist support services are not focused solely on the delivery of the curriculum. They also provide much-needed training and skills to support independent living, and examples of some of those specialist services give a clear view. I cite the teaching of Braille and of British sign language, independent living training to enable independent personal care skills and home skills, mobility instruction and pre-employment support. Local authorities have traditionally provided specialist support services to all schools, using funds retained from school budgets to ensure adequate provision throughout their areas. There are strong concerns that, as academies move out of local authority control, so will their revenue, reducing the amount available overall to specialist support services and relying on academies to commission the services they require. I hope that while the Bill is still with us, we will have further assurances from the Minister. Otherwise, as the noble Baroness, Lady Wilkins, said, the issue will come up again in the other place.

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

There are indeed many complex issues to be further explored and I am sure that this will be done in another place. This morning I briefed my honourable friend Dan Rogerson MP, who will be handling the Bill on behalf of these Benches in another place, beginning on Monday.

One of the complex issues, for example, is that the amendment of the noble Baroness, Lady Wilkins-the spirit of which we certainly support-does not explain how the money retained centrally can transfer to the academies. Is it the expectation that a local authority will make the provision in an academy? Can the Minister confirm whether a local authority will have physical access to an academy to ensure that provision for low incidence SEN pupils is satisfactory? After all, it is being asked to pay directly for that provision.

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Lord Knight of Weymouth (Labour)

In the conversation that the noble Baroness had with her group in the other place, was it discussed whether any amendments will be allowed by the Government? Given the tight timetable of Second Reading and Committee stage on the Floor of the other place in the same week, it looks as though the Government want to get this Bill on the statute book before the Recess; therefore there will be no amendment because there would not be time for it to come back here.

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

I understand the point that the noble Lord, Lord Knight, is making, but I did not discuss that matter with my honourable friend. After all, the procedure at the other end is not a matter for a Member of this House; it is entirely for the other end.

On statementing, the general duty on local authorities to ensure that appropriate children are statemented is not within the scope of the SEN obligations. It is a discretionary matter for academies as to whether they put forward children for statementing. Therefore, on one view, children in academies might be disadvantaged; on the other hand, the likelihood is that academies might overpresent children for assessment for statements-but this, of course, has its own problems.

That the noble Baroness, Lady Wilkins, has felt it necessary to table this amendment again highlights the fact that many noble Lords are still not satisfied that the mechanism is fair and transparent for calculating how much extra funding goes to the academies and how much will remain with the local authorities to enable them properly to carry out their duties in relation to the children in maintained schools.

In Committee, the noble Lord, Lord Hill, accepted that these arrangements must be seen to be fair and undertook to,

"reflect on the underlying principle of making sure that there is transparency and trust in these arrangements".-[Hansard, 23/6/10; col. 1333.]

The ready reckoner on the department website has a lot to answer for and the funding mechanisms are clearly a work in progress. We have suggested that someone needs to take an independent view that these arrangements are fair to children in and out of academies. However, because of the rules on Third Reading, we were not allowed to table amendments containing further ideas on how this might be done.

We are not convinced that the YPLA is up to the job and remain concerned about this matter. As I said earlier, we have briefed our colleagues in another place, who will now have the opportunity to explore these issues further. The Government have time to get this right and we on these Benches hope that they will do so.

Photo of Lord Willis of Knaresborough

Lord Willis of Knaresborough (Liberal Democrat)

I was not in the House when the Bill was presented, but I wish to raise an issue on this important amendment moved by the noble Baroness, Lady Wilkins. Since 1979 and the Warnock report, Governments of all persuasions have committed themselves to the principle of inclusive education, of allowing children with mild and complex special needs to be taught with their able peers within mainstream schools. Will the Minister say whether the Bill recognises that the small number of SEN children who appear in mainstream schools, and who will appear in some of the academies, may be refused entry simply because the school does not have access to adequate facilities to make provision for those children? They have specific needs that require funding. I hope that my noble friend will respond appropriately when he replies to the amendment.

Photo of Lord Low of Dalston

Lord Low of Dalston (Crossbench)

The case has been well made by the noble Baronesses, Lady Wilkins and Lady Howe, and others. I spoke on the issue on Report so I shall not labour the point further. Indeed, it is hardly necessary as I think that the Minister acknowledged, in responding on Report, as the noble Baroness, Lady Wilkins, said, that there is a problem. There is a case to answer but the Minister has not answered it. I very much hope that he can do a little better when he responds. Otherwise, as other noble Lords have said, the discussion will have to continue in another place. I very much hope that that will not be necessary and that the Minister can respond in a way that will sufficiently reassure the House this afternoon.

It is not only that there is a problem; it is an increasing problem. The dissipation of local authority budgets will increase with the number of academies. There are few private providers who can take over the provision of the specialist services that we are talking about. The only way realistically to provide them is for local authorities, which have a sufficient critical mass to sustain services for these low incidence groups, to do so. If the budget is removed from local authorities so that they cannot provide specialist services, there is the problem of knowing where academies will buy them in for their pupils from low incidence groups. The problem is serious and is likely to grow. I hope that the Minister can give us further reassurance when he replies.

Photo of The Earl of Listowel

The Earl of Listowel (Crossbench)

My Lords, I am concerned that there is continuing anxiety about the protection for children's special educational needs in the Bill. I am grateful to the Minister for the meetings he has had with Peers interested in this area and I will listen to his response with great care.

Concern about the continuance of educational psychologists has been raised by the noble Lord, Lord Adonis, and the noble Baroness, Lady Sharp, in previous stages of the Bill. In the past there has been a lot of concern that there were insufficient educational psychologists and that more was not done to ensure that their development was of the highest quality. I hope that the Minister can, either now or in writing later, provide some further reassurance that the changes in the Bill will not impact on the future supply of educational psychologists.

3:30 pm
Photo of Baroness Sharp of Guildford

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, this has been mentioned on a number of occasions and I want to intervene very briefly. In the letter that the Minister sent to the noble Baroness, Lady Wilkins, on 2 July 2010, he made quite clear the division of funding between what was going to be kept centrally and what was going to be distributed. Included in the funding to be kept centrally were educational psychology services; SEN administration, assessment and co-ordination, monitoring of SEN provision, and SEN transport. Included in funding to be distributed to the academies as a share of local authority funding was the funding retained from the schools' budget for centrally provided SEN support services. This is the core of the issue we are discussing today. Services for deaf children, for blind children, and so forth, are part of these centrally provided support services. The problem is that if this share is taken away from the centre, there is not enough money left at the centre to provide these services adequately. The Minister has so far not been able to give us assurances that there will be adequate provision, and this is the core of the case that many of us are worried about. I look forward to hearing what the Minister says today.

Photo of Lord Lucas

Lord Lucas (Conservative)

My Lords, I agree that this is a problem which needs to be sorted out as we move to a world where there are many more academies and they play a greater role in the local provision of schooling. As my noble friend Lady Sharp says, there is this budget for SEN support services. I think private providers, in particular not-for-profits, will come into this area, given the chance. I do not see why the RNIB should not play a role in the provision of services for blind people. It would mean that good practice spread pretty rapidly round the country rather than being isolated in little pockets, so I can see a lot of advantages in moving away from pure local education authority provision. None the less, the mathematics of dealing with low incidence means that if you distribute the funding, all you can be certain of is that the funding is not where you want it when you need it, and we have to solve that problem.

Photo of Baroness Campbell of Surbiton

Baroness Campbell of Surbiton (Crossbench)

My Lords, I also support the amendment of the noble Baroness, Lady Wilkins. I am sorry I was unable to speak at Report. Unfortunately my health stopped me participating. However, this is an extremely important amendment. I met with two young disabled people with support needs last week who both told me that if the funding gets changed in the way they think is going to happen, then the academies cannot deal with their extremely heavy and expensive accessories so they will be compromised. We really have to think again on this one. I, too, am looking forward to hearing what the Minister has to say because thus far we do not feel secure in this Bill's current form.

Photo of Baroness Grey-Thompson

Baroness Grey-Thompson (Crossbench)

My Lords, I also support the amendment of the noble Baroness, Lady Wilkins. As a child whose parents used the Warnock report to enable me to go into mainstream education, and had several discussions with the local education authority over a number of months to enable me to do that and not be shipped off to a special school, I have direct experience of budgets not being allocated. I went to school at a time when there was no statementing for disabled children. I had an education and went to school, but there was no access and there were no lifts. The local education authority employed six people to carry the wheelchair users up and down the stairs. So I had an education and went to a school but I was away from home and I felt quite isolated in the environment that I was in. My concern, if this is not properly addressed, is that children will, like me, receive an education but they will be isolated, away from their peer group, and they will not receive the rounded education that they all deserve.

Photo of Lord Hunt of Kings Heath

Lord Hunt of Kings Heath (Labour)

My Lords, there seem to be two issues here: one is the question of how to deal effectively with low-incidence SEN and the necessary funding arrangements; and the second is the issue of whether the other place is going to have any time at all to deal with this matter, as some noble Lords hope it will.

On the question of the principle, throughout this Bill the Minister has described the tension between the risks on the one hand and the advantages on the other of each academy having much more discretion over its own budget. We well understand that. As they start off, the governing bodies are bound to be conservative in their budget-making, because that is what new bodies and entities do. The risk is that they will not make an upfront investment in these services. The risk is that by the time they find they need to invest, these services will have gone out of business. That is the essential concern-it is not the principle. I have no problem with what the noble Lord has written in his letter about where governing bodies may look for future services. One can see a potential train crash in this area and so far we have not had the necessary reassurance to know that a mechanism is in place to ensure that it will not happen. I again ask the Minister why the role of the local authority is being overlooked in this area. I do not see why we should shy away from giving local authorities responsibility.

Yesterday we had a four-hour debate on working practices in your Lordships' House. A week ago we had a seven-hour debate on reform of your Lordships' House. The consensus view of the dozens of noble Lords who spoke in those debates was that this House is the effective revising Chamber and this House is the place that effectively scrutinises legislation. Yet we are told that noble Lords who share that concern are prepared to leave it to the other place to deal with this matter. My understanding is that this Bill will be finished in the other place in two weeks' time because a rushed programme will enable it to get through. There is virtually no possibility that the other place will be able to consider this matter in detail. That is why the matter should be decided in your Lordships' House.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, I am grateful for the points that have been raised in this debate. We have, rightly, spent a lot of time on this Bill talking about various sensitive issues to do with our most vulnerable children. As I said in Committee and on Report, I accept the practical concerns raised by the noble Baroness, Lady Wilkins, and others. When we met yesterday, we went through some of those. I hope that some of the answers I can give this afternoon may take us a little further. However, I certainly recognise the concerns that she has raised.

The noble Baroness, Lady Wilkins, and others have been kind enough to accept that, with the parameters within which I am operating, I have sought in general to approach SEN issues throughout this Bill with an open mind and, so much as I have been able, taken concerns on board. I hope that, in some cases, I have gone further than perhaps noble Lords thought was likely to be the case when this process started.

On the specific point of low-incidence SEN, I can say to the noble Baroness that, as part of looking at funding for academies from 2011 onwards, we will work closely with local authorities. I accept the point made by the noble Lord, Lord Hunt, about the importance of local authorities and other parties in this area. I can confirm that we will look specifically at the funding of low-incidence SEN. This work will start during the autumn. I have today instructed officials to ensure that the Special Educational Consortium is kept abreast of developments and is able to make its views known. It is extremely important that it has that opportunity and we shall reflect on the points that it makes to us. We are committed to ensuring that children with sensory impairments in both the maintained and academies sectors receive the services that they require.

We have also established an advisory group to help us work through the issues particular to SEN and special schools in relation to the establishment of academies. We want to use the practical expertise in that sector and the group will include heads and governors from special schools and mainstream schools with specialist units, as well as local authority representation at officer and political level. As I said on Report, and as I underlined to the noble Baroness, Lady Wilkins, and to the noble Baroness, Lady Howe, yesterday when we met, I am very happy to put on the record our undertaking to monitor the impact of increasing numbers of academies on local authority sensory impairment services. We will continue to work with local authorities to ensure that adjustments to their funding in respect of academies properly reflect their continuing responsibilities. Our officials will also work with organisations such as the National Sensory Impairment Partnership on this.

Listening to the debate, I am very conscious that I am not expert on SEN, and I am not the Minister responsible. However, as part of the advisory groups and the work we will be taking forward, I would be very happy to enable a proper exchange with the relevant Minister in the department so that we can work through these issues, using the experience and expertise of noble Lords, to make sure we come up with practical solutions that meet the concerns that noble Lords have raised. So I am alive to the concerns. I hope that the noble Baroness will feel that that provides some slight further reassurance from yesterday. In the light of that I ask her kindly to withdraw her amendment.

Photo of Baroness Wilkins

Baroness Wilkins (Labour)

My Lords, I am most grateful to all Members of the House who have spoken in support of this amendment and to the Minister for the reassurances that he has tried to give. Unfortunately, it does not meet the needs of those children who are going to be at school in September. Given the strength of feeling in the House, I would like to test the opinion of the House.

Division on Amendment 2

Contents 193; Not-Contents 171.

Amendment 2 agreed.

Division number 1

See full list of votes (From The Public Whip)

Clause 3: Application for Academy order

Amendment 3

Moved by Lord Whitty

3: Clause 3, page 3, line 4, at end insert-

"(1A) Before making an application for an Academy order, the governing body shall consult relevant parties on whether to make such an application.

(1B) The Secretary of State shall issue guidance as to how governing bodies should conduct such a consultation with parents, pupils, teaching and non-teaching staff and their representatives, neighbouring schools and the local authority and such other parties as he may think appropriate; such guidance would also specify the information that should be made available to consultees in relation to the proposed arrangements for Academy status."

3:55 pm
Photo of Lord Whitty

Lord Whitty (Labour)

My Lords, I think we have just seen the need for the Government to listen. Amendment 3 is about consultation on this whole process. It does not seek to reopen the whole issue of the strategy behind this Bill-noble Lords will know there are different opinions in this House. However, it does bring home the need for consultation. This group of amendments relates to the conversion of maintained schools into academies and the next group relates to consultation on additional schools, as the Government are now calling free schools.

We all recognise that the transformation of a maintained school into an academy is a momentous decision for the school-for the pupils, for the parents, for neighbouring schools and for the whole community. Yet originally we had a Bill that had no provision whatsoever for consultation with any of them. I acknowledge that the Minister has listened to some degree and that he came forward on Report with an amendment, which is now Clause 5, which deals with consultation.

I have to return to this as Clause 5 is deeply flawed. It is seriously flawed in three places and has a minor flaw in a fourth. First, the clause places all responsibility on the school governing body and none on the Secretary of State. Secondly, it makes no attempt to define those who must be subject to the consultation and refers simply to those whom "they think appropriate", as subsection (1) states. Incidentally, the minor flaw is that there must be some slipping up in educational standards in either the Department for Education or the parliamentary counsel as in my young day "governing body" was actually singular and would not be referred to as "they". No doubt that can be sorted out in another place.

The most important flaw, however, is that Clause 5(3) would allow consultation to be delayed until after the academy order has been granted. Subsection (3) says:

"The consultation may take place before or after an Academy order, or an application for an application for an Academy order, has been made in respect of the school".

In other words, the governing body could have met and decided to have put in an application without consulting parents, staff or anybody else. The Secretary of State or his officials could have decided to make an order on the basis of that application without having consulted anybody. The terms of that order could have been negotiated, the financial arrangements could have been set up, third parties could have been lined up, all without consultation, and the order could have been issued without consultation. Only at the point just prior to implementation would consultation be required. That seems to me a common-sense reading of the option "or after" in subsection (3).

The Minister was quite helpful on Report. He explained that in practice the governing body would consult and the Government would encourage it to consult. They would issue guidance on consultation, and that guidance would be on the department's website. I was very glad to hear that and I am sure my colleagues elsewhere were, but why we do not put it in the Bill? That would greatly reassure all the bodies concerned and set a process for every local conversion. Regrettably, I think we know why it is not in the Bill; my noble friends Lord Knight and Lord Hunt referred to the reason earlier. It may have been altered slightly by the last vote, but it is not in the Bill because the business managers are anxious to get this Bill through before the end of July, and any process that was built into statutory requirements would slow down the Government's aim to get this through so that they could meet their deadline of bringing some academies into being in September.

I have to say to the Minister and his colleagues that it may sometimes be a bit boring and may be a problem for Ministers, but they have to slow down. Frequently, in 13 years of government, those on our side of the House found that they had to slow down and that often it was this House that required us to do that-usually at the behest of Liberal Democrats insisting that they would accept the principle as long as we engaged in widespread consultation. No doubt similar representations are being made these days rather more privately. However, if Ministers really want conversion to academies to happen, and to happen smoothly without too much local controversy, they would be wise to accept my amendments.

The amendments provide that governing bodies should engage in consultation before they apply for academy status; that the Secretary of State would issue guidance to them on whom to consult, how and with what information; and that before agreeing to an academy order, he would have to be satisfied that such consultation had indeed taken place. That is a reduction from what I was looking for on Report and puts a lot of power into the hands of the Secretary of State and the guidance that he would issue. However, separately, the amendments still require the Secretary of State to consult the local authority. That seems to be crucial, as we recognised in the previous debate. The local authority is crucial in these decisions, because the relationship between it and the school will change dramatically if the school converts to an academy. The local authority is responsible for ensuring educational provision in the whole community, not least on special needs, as we have just heard, and because the local authority has responsibility for sustaining educational provision beyond this generation of pupils and parents.

According to the speech the other day by the noble Lord's colleague, the Secretary of State, to the Local Government Association, he wants local authorities to continue to play a strong and strategic role in the schools system. If that is the case, surely at the very least there should be a provision in the Bill that before a school converts to an academy, the Secretary of State should have consulted the local authority in question.

These amendments would require these issues to be put in the Bill, let the Secretary of State issue the appropriate guidance on the consultation, and let the Bill recognise the crucial role of the local authority. These would not derail the process unless it was being rushed. I advise the Minister to accept the amendments or indicate that in another place he will ensure something similar is put in place. I beg to move.

Photo of Baroness Perry of Southwark

Baroness Perry of Southwark (Conservative)

My Lords, I am surprised and sad that the amendment has come back at Third Reading in this form. Like many other noble Lords, I have engaged in a lot of discussions with a lot of schools that have for some weeks been engaged in the process of moving to academy status. The normal procedure that they have described almost universally-with slight variations, although they have all consulted-is that the head of the school first talks the proposal through with the staff to get the feeling from inside the school. What head is going to go ahead with a change to the school's status such as this without taking her or his staff with them? That scenario is unthinkable. Then there is a lot of discussion between the governing body and the head. After that, the governing body goes out to talk to parents.

Almost all these schools have had meetings with parents to explain what academy status would mean and why they want to move ahead. The church schools have consulted the diocesan board and the church; there have been long discussions and many of the diocesan boards have had extensive consultations with their schools and, in many cases, with each other. There is a huge amount of consultation and it is unthinkable-absolutely unthinkable-that any school, any head teacher, any group of staff or any governing body would want to press ahead in some sort of secretive way without making sure that they were taking the staff, the parents and the local community with them. That is the way schools operate.

Once again, there is an arrogance in this House that we are the only people with good intentions. Just 20 minutes ago we were talking about those excellent governors and our faith in them. Why can we not trust the people who run our schools and education services to behave in a sensible and honourable way? That is how they have always behaved. The schools that I have talked to-I am sure many noble Lords have had the same kinds of conversation-have behaved in that way. To be prescriptive, to write down as a rule that we are consulting only because it is the law, would be alien to the way in which good schools operate-and only good schools will come this way.

I am equally certain that, when we move past the stage of the first Ofsted excellent schools wanting to become academies and move to some schools that may be more questionable, the Secretary of State and the civil servants in the department will closely question them as to the nature of the consultation they have had as part of due diligence. The amendment is unnecessary, arrogant and plain rude to the people in the education service that we all support. I very much hope that the noble Lord will withdraw it.

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

My Lords, we on these Benches are second to no one in our enthusiasm for proposing the most widespread appropriate consultation on a matter such as this which is so important to every school. That is why we were so pleased that the Minister brought forward the amendment on Report to put into the Bill the consultation that had been lacking in the original Bill. However, the noble Baroness, Lady Morgan of Drefelin, and her predecessors, has convinced us on numerous occasions of the dangers of lists and of being prescriptive as to who you should talk to about this, that and the other.

Photo of Baroness Morgan of Drefelin

Baroness Morgan of Drefelin (Labour)

My Lords, does the noble Lady agree that we are still convincing those on the other side of the Chamber of the dangers of lists? The right honourable Secretary of State for Education is experiencing a very difficult time with lists at the moment. We stand firm on that position.

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Baroness Walmsley (Liberal Democrat)

The noble Baroness is very quick on her feet this afternoon but that is not the sort of list we are talking about. The list in Amendment 3 is dangerous because it probably leaves somebody out. In an individual school's case, there may well be somebody who is appropriate to consult but who is not in the list. There are times when you have to trust schools. You have to trust what was in the Government's amendment on Report, which is now in the Bill, that appropriate consultation must take place. Matters such as this will have widespread publicity within a local area, and any organisation that believes it is an appropriate group within the terms of the previous amendment from the noble Lord, Lord Hill, but has not been consulted will certainly jump up and down and shout about the matter, making sure that the governors of the school know its view on whether the school should go ahead.

I remind the noble Lord, Lord Whitty, that a school does not become an academy until the point of conversion. Although I personally strongly encourage schools to consult at the earliest appropriate moment, as I have already encouraged them to do in this Chamber, it must be done according to what we have in the Bill now, before conversion. That is vital.

Photo of Baroness Morgan of Drefelin

Baroness Morgan of Drefelin (Labour)

My Lords, I have learnt so much about conversion in the process of this Bill. I have learnt about the noble Baroness's conversion to the benefits of the academy model promoted by those on these Benches and now by the party opposite, too.

We come back to what the Minister has talked about through our deliberations: the need to get the balance right between central prescription and local innovation, and the need to trust schools. Nobody in their right mind would think it a good idea for anyone in central government to be rude to schools or to put themselves in a position where they have to apologise individually to them. That is something that all of us around the Chamber take seriously.

Listening to my noble friend Lord Whitty proposing his amendment, I thought that what he said was very reasonable. At the heart of what he is asserting is the need for good guidance for schools. We are talking about potentially large numbers of sometimes quite small schools having to go through a process, and about giving them the right kind of support and guidance. I looked at the guidance that is available on the Department for Education's website. Consultation does not feature very strongly in that; it does not even get its own little blue box in the summary of the conversion process.

On Report, the Minister said that the Government were,

"amending our advice to converting schools on the department's website to include guidance on good consultation practice. We will discuss with an applying school as part of the conversion process what arrangements it has made for consultation".-[Hansard, 7/7/10; col. 309.]

I would be happy if the Minister would explain whether the advice on the website has been updated since Report. We are in a very fast-moving process and if the Government are committed to providing full and proper advice and guidance to schools on consultation, that needs to happen quickly. The advice that schools get from the website about the communication that they should have with the local authority suggests that they should simply ask it to prepare for them details for the transfer of land-deeds and such. That is the context in which a conversation with the local authority is suggested.

There are good, simple suggestions on the website about how schools might consult parents, such as sending a letter to them explaining the proposals and perhaps meeting them. However, I am concerned that the only communication with the local authority should be to ask the local authority,

"to gather land ownership and land registration documentation and information".

Surely there is a lot more that the school would want to talk to its local authority about. Will the Minister update that guidance, and soon?

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, we return again to the issue of consultation-and we will have another go in a moment with the next group of amendments. We have had detailed debate on the subject both in Committee and on Report. These amendments cover much of the ground that we have already debated and on which I have brought forward amendments, so I hope that the House will forgive me if I am relatively brief in rehearsing familiar arguments.

As my noble friend Lady Perry argued, it is the Government's view that the individuals who lead schools-the governors and the head-are best placed to make decisions. They know the local area, the local circumstances of the school and how it relates to other schools in the area. We trust them to determine how to consult and we do not intend to provide an inflexible checklist, which would not make the consultation any more meaningful. The trusting of professionals to do their job is a key principle that the Government are keen to pursue on many fronts, and it underpins this Bill.

Amendment 3, as the noble Lord, Lord Whitty, set out, would also require the governing body to consult before applying for an academy order. We had this discussion last week on Report. It is not until the academy arrangement is finally entered into that the conversion process is legally agreed. That is why it is appropriate to leave it to governing bodies to decide when they should consult, so long as they do it before they enter into academy arrangements. However, I accept that they will frequently want to do it-as my noble friend Lady Walmsley said-early in the process rather than later.

The noble Baroness, Lady Morgan of Drefelin, rightly said that we are amending our advice on the website. I do not believe that it has yet been amended. I do not think that what she read out has been updated and we need to do that urgently. We will obviously discuss with an applying school the arrangements that it has made for consultation and we do not believe that we need to be more prescriptive than that.

Amendment 4 seeks to require the Secretary of State to consult the local authority over any academy proposals. Schools or proposers for free schools will, and have to, consult whomever they consider appropriate, and in many cases that will include the local authority. However, we do not believe that the Secretary of State needs to be involved in any consultations in addition to the school or the proposer, and we do not think it necessary to give local authorities a role which could-although perhaps only in some areas of the country-undermine the purpose of the Government's policy; as we know, that has been the case in the past.

Given that we have had these debates and rehearsed these arguments, and are to return to them in the next group of amendments on consultation more generally, I hope that the noble Lord, Lord Whitty, will feel able to withdraw his amendment.

4:15 pm
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Lord Whitty (Labour)

My Lords, I am disappointed by that. I have been reasonable: I have listened to what the Minister has said on previous occasions and have not specified a definitive list. Indeed, the amendment leaves the final definition of the list to the Secretary of State, so I trust the Secretary of State. It would be odd if any consultation excluded the parents, pupils and staff, and I think that the House, and indeed society as a whole, need some reassurance on that.

I, too, had a quick look at the website after the previous stage of the Bill. It gave very little guidance on consultation and virtually none on substantive consultation with the local authority. I am afraid that the relationship with the local authority seems to be the most disastrous aspect of this policy, because sometimes the Government explain their commitment to academies as taking as many schools as possible out of the so-called control of local authorities. However, even if we accept that objective, the relationship with local authorities will be crucial in the future, as they will have to take on board the consequences for other schools in the area of a single school or a significant number of schools becoming academies within the area of their jurisdiction.

I have moved quite considerably towards the Minister in not being prescriptive. I have no doubt that he thinks I could move further, but I also think that he could move further. At the very minimum, he should probably look at Clause 5(3) to see whether the phrase "or after" is unnecessary, as it raises a significant number of fears. If the whole process is gone through with consultation in the terms described by the noble Baroness, Lady Perry-and I am sure that that is true in relation to schools that are already enthusiastic for academy status-future cases will undoubtedly be more controversial with the governing body, the staff, the locality and the local authority. Therefore, enthusiasm for consultation may be somewhat diminished in future and the need to provide guidelines as to how the consultation should take place will be more important.

Even if we assume that in most cases the consultation can take place very early in the process, Clause 5(3) allows it to take place at the very end. That is not consultation; it is presenting an option with all the terms of the agreement and the financing tied up and with a commitment on the curriculum and the governance also tied up. It is then presented to the parents and the public effectively as a fait accompli. It is true that that consultation could still reveal a no response but there is no option for the public, the parents, the pupils, the other schools and the local authority to influence or negotiate a change in the provisions. Therefore, if the Minister is not even prepared to consider that the other place might delete "or after"-and I think that what he said today indicated that he was not-we had better have it on the record that the coalition is now against consultation at the local level.

Noble Lords:

Oh!

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

I would love to hear what was said a few minutes ago. We are very much in favour of consultation on this side of the House.

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Lord Whitty (Labour)

My Lords, if you still allow consultation to take place as "or after" implies in subsection (3), you are not wholeheartedly committed to consultation. I respect everybody's views, I respect the experience that the noble Baronesses, Lady Perry and Lady Walmsley, have referred to, but it still allows for a sham consultation to take place. I would like to close that door and therefore would like to test the opinion of the House.

Division on Amendment 3

Contents 163; Not-Contents 210.

Amendment 3 disagreed.

Division number 2

See full list of votes (From The Public Whip)

Clause 5: Consultation on conversion

Amendment 4 not moved.

Amendment 5

Tabled by Lord Whitty

5: Clause 5, page 4, line 6, leave out subsection (3) and insert-

"(3) In the case of a new (or free) school being granted Academy status, the Secretary of State must-

(a) ensure that a consultation has taken place with appropriate parties;

(b) consult the local authority."

4:34 pm
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Lord Whitty (Labour)

My Lords, in view of the Government's attitude to my previous amendment and of the vote, I shall not move this amendment in favour of Amendment 8.

Amendment 5 not moved.

Amendment 6

Moved by Lord Hill of Oareford

6: Before Clause 9, insert the following new Clause-

"Impact: additional schools

(1) This section applies when the Secretary of State is deciding whether to enter into Academy arrangements in relation to an additional school.

(2) The Secretary of State must take into account what the impact of establishing the additional school would be likely to be on maintained schools, Academies and institutions within the further education sector in the area in which the additional school is (or is proposed to be) situated.

(3) A school is an "additional school" for the purposes of this section if-

(a) it does not replace a maintained school that has been or is to be discontinued, and

(b) it is not a school in respect of which an Academy order has effect.

(4) For the purposes of subsection (3)(a) a school does not replace a maintained school if it provides education for pupils of a wider range of ages than the maintained school."

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, it gives me great pleasure to move Amendment 6 and speak to Amendment 7. These two amendments follow our discussion on Report and are designed to make clear the situation regarding new free schools, which are defined as additional schools in the amendments. My noble friend Lord Phillips tabled an amendment on Report designed to require the Secretary of State to take into account the likely impact of a new free school on neighbouring schools, and I accepted the principle of it then.

Amendment 6 will ensure that, when the Secretary of State is considering whether to approve proposals for additional academies, such as a new free school, he will be required to take into account the impact of those proposals on the other schools and colleges in the local area. As I have explained before, the Secretary of State has a duty to act reasonably in all matters, which includes considering all the relevant implications of the proposals. The amendment puts that requirement into the Bill, and will ensure that no free school proposal will be approved without due consideration of its wider implications.

When assessing the impact, the Secretary of State will consider a range of information and issues. These might include things such as performance data relating to local schools, admissions data, surplus places data and any sensible school reorganisation plans in the area. This will be done with a view to gauging whether introducing additional competition into the local area will be helpful or otherwise. Subsection (4) makes it clear that where the new school is not like for like-for example, it is the result of an amalgamation-it would also be counted as an additional school and thus caught by the requirement to evaluate the impact.

I have also tabled Amendment 7. If accepted, this will require any promoter of an academy which does not replace the maintained school-that is, a new free school-to consult those it sees fit on the issue of its proposal. As I have said, noble Lords raised concerns on Report that the requirement to consult on academy proposals, on which I brought forward an amendment at that stage, was aimed at converting schools and therefore did not capture proposals for free schools. The point was made not only by my noble friend Lord Phillips but also by the noble Baroness, Lady Royall. Even though I think that a free school proposal, which will need to demonstrate parental demand and support, will by definition involve and require consultation, I accept the point of principle and believe that I have addressed it with this amendment. It replicates exactly the requirement on a governing body under new Clause 5 in that the person who is to enter into the academy arrangements with the Secretary of State must both take a view on those with whom it is appropriate to consult and consult with them on the question of whether to enter into the arrangements.

Taken together, Amendments 6 and 7 reflect the concerns that have been raised on all sides. I believe that they provide further reassurance on consultation to those noble Lords who flagged these issues on Report. I beg to move.

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Lord Phillips of Sudbury (Liberal Democrat)

My Lords, I am most grateful to my noble friend for listening to the arguments advanced at the previous stage, with which I was involved, and for bringing forward the new provisions that meet satisfactorily the matters concerned. There is just one point on which I would be obliged for his assurance. Some noble Lords will find that the wording of subsection (1) of the proposed new clause, although it mirrors the new consultation clause, still appears somewhat subjective, requiring the people promoting the new or additional school to,

"consult such persons as the person thinks appropriate".

It would be helpful to have in Hansard an assurance from the Minister that, in considering the impact of a new or additional school on other schools under the new impact clause, the Secretary of State will have to take a view as to whether the consultation undertaken by the promoters of the new school is adequate and sufficient in order for him or her to come to a view on whether the impact is on the right side of the line.

As I say, I hope that the Minister will be able to assure the House that, if the Secretary of State considers that the consultation undertaken by the promoters is simply not adequate to establish whether the impact is on the right or wrong side of the line, he or she will be able to undertake further consultation as will lead to the facts that he or she must have in order to reach a proper conclusion on impact.

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Lord Knight of Weymouth (Labour)

I pay tribute to the Minister for ceding the principle around the impact of additional schools. He has listened to the House and we are grateful to him for that. Like the noble Lord, Lord Phillips, I pay particular attention to Amendment 7 and the phrase,

"a person must consult such persons as the person thinks appropriate".

Given the excellence of the people drafting the clauses, I am sure that that is perfectly sound technically. However, it is wide in its effect. I would argue that in the case of additional schools, in particular, we have to include in that consultation the local authority and possibly the schools forum. I ask the Minister to commit to amending the Bill in the other place, particularly as he already may need to do so. If he does not like the amendment agreed earlier, that may open up the possibility that he will agree to an amendment on this.

My concern is around the funding of these additional schools and it may help your Lordships if I briefly explain how the existing funding works. The bulk of schools funding comes through the dedicated schools grant-except for academies, which are funded directly by the Secretary of State. The dedicated schools grant is then allocated by local authorities as agreed by the schools forum, which is made up of schools, pre-schools, further education colleges and other 14 to 19 providers. It is notable that the Minister does not include pre-schools in Amendment 6 and, given that under his policy academies can now include primary schools, which may be providers of pre-school education, there may be an issue about pre-schools not being consulted. However, I shall not dwell on that.

When academy arrangements are entered into, the necessary funding for the academy is taken away from the local authority's dedicated schools grant and allocated direct to the academy. Additional schools need revenue funding, and that will come from that local authority allocation. That is why it is essential that the local authority is consulted-unless, of course, the Minister has a pot of money for revenue funding. I know that capital funding is allocated and, like other noble Lords, I have been on the web today trying to understand these issues. On the Department for Education's website I found a press release from the Secretary of State dated 18 June in which he refers to capital funding by reallocating £50 million from the enhancing technology grant to create a standards and diversity fund. However, there is no mention of the revenue funding needed for these new schools.

The frequently-asked-questions section on free schools contains six lines outlining how much funding I will get to run my free school. That remains very vague. It states that,

"we will work with the early groups of Free Schools to develop a sustainable and fair funding model and publish further detail as it becomes available".

Perhaps the Minister is ready to publish that further detail to help inform the debate today.

Determining the revenue of an additional school requires a prediction of pupil numbers. This then determines both how much the new school will get and how much the other schools will lose because we are working within a constrained pot-unless, of course, the Minister has his pot of gold. Can the Minister tell the House where the revenue will come from in the first few years as the additional schools are established? A modest-sized, virtually unviable, secondary school would have 400 pupils at £4,000 per head per year, which is probably lower than the current average per pupil funding. According to my calculator, that is £1.6 million of revenue funding per school in its first year of operation. We need to know where that money is going to come from.

Who agrees the predicted number of pupils for the additional school? That will have an impact on the surrounding schools because they will then know how many they are likely to lose. What form of appeal will there then be for those schools, the local authority and the schools forum, which advises on the detailed allocation to each school? What form of appeal will they have on the decision on the predicted number of pupils? Has the Minister taken legal advice on whether the current process that we are being asked to agree today is challengeable if there is no consultation with local authorities or schools forums?

4:45 pm
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Lord Willis of Knaresborough (Liberal Democrat)

I apologise to the noble Lord but I am trying to get the parlance correct. It would be helpful if he would explain the funding arrangement under the previous Government when a new academy came into a local authority area. How was the money clawed back to balance the places and resources?

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Lord Knight of Weymouth (Labour)

The noble Lord will know that academies have been used to replace failing schools, so there is a fundamental difference in the policy reflected in this Bill. We are being asked to agree arrangements for academies to convert from outstanding schools and, in this case, we are discussing additional schools. There are one or two additional schools for which my noble friend sitting next to me, or I as the Minister responsible, might have been able to find the additional money. That is why I keep asking the Minister whether he has some revenue funding that he has not told us about and whether he has agreement from the Treasury. In these straitened times that is unlikely, so it is most likely that it will come from other schools in the local authority area.

Is the Minister aware that following the unfortunate Building Schools for the Future announcement, there is a considerable appetite among local authorities to take legal action against his department when things are rushed out without working through the details? That is what is happening because of the unexplained desire to get the Bill on the statute book this month.

I know that I have asked the Minister a lot of questions, and he may want to write to me with some of the answers. Since I raised it in this Chamber last week, I would be most grateful if he could explain in his summing up how revenue funding will work for these additional schools, and why the Bill does not provide for consultation with local authorities and school forums.

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Baroness Walmsley (Liberal Democrat)

My Lords, I, too, welcome Amendments 6 and 7, and I am glad that the noble Lord, Lord Hill, has responded to the persuasion and effective blandishments of my noble friend Lord Phillips of Sudbury on this matter.

I have a question on proposed new subsection (4) in Amendment 6, which states:

"For the purposes of subsection (3)(a) a school does not replace a maintained school if it provides education for pupils of a wider range of ages than the maintained school".

Will the Minister explain that, because it is not covered by the letter which he wrote about the government amendments of 9 July 2010? I think it means that it excludes from consideration as an additional school an academy that decides to establish, for example, a sixth form that did not exist before. I would not want this part of the Minister's amendment to work as a loophole that would allow schools covering substantially the same age range, but with a little tweak at one end or the other, to be established without the Secretary of State having the very serious job of considering the impact on other good schools in the area.

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Lord Bates (Conservative)

Briefly, I support my noble friend and place on record a slight disagreement on the amendment from this perspective: I am rather pleased that the wording is retained-that an additional school should consult with such persons as appropriate. It is fair to say that there is potentially a different view. I believe that it is a philosophical point about how we do government. It is about whether we want to go back to the day, which has been tried before, when we have Bills that run to 250 pages. They are so prescriptive about what everyone has to do, and people respond to that simply by taking a tick-box approach to everything-"Have I spoken to them? Have I spoken to them?". They never bother to contemplate and absorb the issues. There is an attempt by the new coalition Government to do things differently. They are saying, "We are prepared to trust people and introduce legislation which is not prescriptive but is simply enabling people. If your school has been judged outstanding by Ofsted, clearly you are doing a good job and we trust you to do the right thing in the right way. If you are a new school and you have support for that, you have greater authority and we want to trust you". That message needs to come across so I urge the Minister not to concede any further ground on this amendment. I think that it is fair enough as it stands.

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Baroness Walmsley (Liberal Democrat)

I do not want the noble Lord to get away with the idea that I do not support these amendments. I simply asked the Minister a question about subsection (4) of the proposed new clause.

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Lord Bates (Conservative)

Let me correct that for the record in Hansard. There was no suggestion of that at all.

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Lord Adonis (Labour)

My Lords, I congratulate the noble Lord, Lord Hill, on his Amendments 6 and 7. He has gone as far as he reasonably should to meet the concerns about consultation in respect of new schools. He will obviously explain his response to the particular issues to do with funding raised by my noble friend Lord Knight. I do not regard the concerns raised on other issues to be matters of substance. The noble Baroness, Lady Walmsley, was concerned that the definition of what constituted a replacement school in subsection (4) of the proposed new clause might mean that a school which just had a somewhat larger age range did not constitute a replacement school, but my reading of the amendment is that, if that were the case, it would then be a new school and so would still be subject to the consultation arrangements which are encompassed in the other amendments tabled by the noble Lord, Lord Hill. Either way, whether it constitutes a replacement school or whether it constitutes, in the wording of Amendment 6, "an additional school", it is captured by requirements for consultation that are equivalent.

Regarding the concern raised by the noble Lord, Lord Phillips of Sudbury, about the subjective nature of the consultation, I do not read the amendment as being entirely subjective. He is the lawyer and I am not, but my reading of subsection (2) of the proposed new clause is that because the Secretary of State must take into account the likely impact of establishing the additional school on maintained schools, academies and institutions within the further education sector, he will have to be satisfied that there has been a consultation in respect of them. It would not be possible for the Secretary of State to take into account the impact on those institutions unless they had been consulted. My reading of subsection (2) of the new clause proposed by the Government's Amendment 6 is that it substantially limits the subjective scope, because the Secretary of State would need to be satisfied that they had been consulted in order to be able to evaluate the impact.

Photo of Lord Phillips of Sudbury

Lord Phillips of Sudbury (Liberal Democrat)

I am grateful to the noble Lord for giving way; he may have finished. It was precisely to elicit a clear statement along those lines that I raised that query. Being a lawyer, I think the wording as it stands leaves things a little open, hence the clarity I seek, which I hope will be given.

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Lord Adonis (Labour)

I had almost finished. I just wish to make one concluding point. I support the policy of new school providers getting a fair opportunity to establish new schools where there is a need for additional schools in an area, either to meet the requirement for additional school places or-to be quite frank-to meet the requirement for high-quality places where they are not being provided by existing schools. If there is to be that opportunity, it is very important that we do not tie up school promoters in red tape that will either dissuade them from coming forward with proposals in the first place or hamper them unduly when it comes to conducting their consultations. Amendment 8 states that,

"the Secretary of State must satisfy himself that relevant interested parties have been consulted".

As soon as you put phrases like that in legislation, you guarantee a succession of legal cases as people challenge what constitute "relevant interested parties". That would not meet the purpose, which is the provision of new schools where they are needed or will raise the quality of education in an area, so I do not believe it is desirable.

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Baroness Morgan of Drefelin (Labour)

My Lords, it is my turn to pop up from behind the Dispatch Box. I was very interested to hear the noble Lord, Lord Bates, talk about the philosophical issues in Clause 4; I was equally interested to see the little exchanges going on across his Benches. Of course, we have very important business before us at this Third Reading.

My noble friend Lord Adonis and the noble Lord, Lord Phillips, put their finger on the issue that my amendment is about; that is, the Secretary of State being satisfied that appropriate consultation has been undertaken before an academy is established where there was no school previously. I think that we are all keen to hear what the Minister has to say, as my amendment is an amendment to his government amendment. I know that my noble friend Lady Royall will be pleased that he has listened to her remarks and taken on board concerns voiced around the Chamber about appropriate consultation on the establishment of free schools. There are real concerns and questions, for example, about how the admissions code might work in some very small schools, how schools set up by a group of parents might cater for other parents and how the broad and balanced curriculum might work in them. It is therefore important that questions around consultation are taken seriously. Like my noble friend, I believe it is important that, where there is a need for a new school, we make sure that parents have the opportunity to establish a school with the support of the education community around them and that if they consult appropriately they will not be accused at some later stage of having consulted only a few of their mates and people whom they know are fellow travellers and will simply agree with them.

In the interests of ensuring that taxpayers' resources are invested in good new schools and that work is done to establish sustainable schools that fill a need, the consultation on the establishment of new free schools should be no less important to the Secretary of State than consultation on the conversion of a maintained school to an academy. I look forward to hearing the Minister set that out on the record. I shall think about his response when it comes to considering whether to press my amendment to his amendment.

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Lord Whitty (Labour)

My Lords, I support Amendment 8 as an amendment to Amendment 7, because it would require the Government in relation to free schools to engage in at least the same degree of consultation as they are required to engage in on conversion.

In a sense, I congratulate the Government on redesignating free schools as "additional schools" because that indicates what they really are. It may not be what the Minister's PR department would have advised him to call them, but "additional schools" raises the issue of additional resources. At some point in this debate, probably now in another place, he and his colleagues will have to answer the question posed by my noble friend Lord Knight on how the additional schools will be financed.

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Lord Hill of Oareford (Conservative)

I am grateful for the comments that have come from all sides of the House about consultation. I am grateful, too, for it being recognised that I have listened to concerns and that the Government have moved a considerable way in reflecting them. As I said previously, that has been in response not only to concerns raised with me by noble friends Lord Phillips, Lady Williams and Lady Walmsley but also to the point made by the noble Baroness, Lady Royall, last week about wanting to be sure that the requirements for consultation on new academies-free schools-were the same as those for converting schools, which was the focus of our previous amendment. I shall try to provide as much reassurance on that as I can to the noble Baroness, Lady Morgan of Drefelin, as I go along.

The first thing I should do is congratulate the noble Lord, Lord Adonis, on understanding what I think is quite opaque drafting, in certain places, by the parliamentary draftsman. He was spot on in his interpretation of subsection (4), which was the question asked by my noble friend Lady Walmsley. It was designed precisely to capture the situation that she cited as an example that she wanted captured, so I hope I can reassure her that it would meet that.

As for the point raised by my noble friend Lord Phillips, it is fair to say that one of the tests for the approval of a new free school will be for the promoter to show that there is demand and support. Without being able to demonstrate that there is demand and support, without that basic evidence, the proposal would simply not be accepted or endorsed by the Secretary of State. It is not the point that one would need to have reassurance that he would satisfy himself that, if it had not happened, a consultation needed to take place. If the new free school proposal cannot demonstrate parental support, which could be demonstrated, I think, only by consultation, the proposal could not be accepted. That is, in part, the answer to the noble Baroness, Lady Morgan. Before approving a proposal, the Secretary of State would have to see evidence that assured him that there was appropriate demand and support.

Secondly-I know that this concern about free schools was raised by other noble Lords -the Secretary of State has made it clear that he will carry out a fit and proper test of any proposer of a free school and take that extremely seriously. Thirdly-I am happy to put this on the record-we have obviously accepted the argument made by a number of noble Lords that we need to be clear in legislation that the requirement to consult applies equally to new free schools as it does to the converting academies that we discussed at an earlier date. The aim and purpose of these amendments is to achieve precisely that.

Moving on to Amendment 8 in the name of the noble Baroness, Lady Morgan, I find the argument put forward by the noble Lord, Lord Adonis, quite persuasive. I know it is surprising. It is persuasive about the difficulty of these descriptions laying oneself open to legal challenge, so I do not find myself compelled to accept Amendment 8. As for the noble Lord, Lord Knight, if it is acceptable to him, because he made important points, although they were more like Committee stage points and quite a long way from the specific amendments about consultation, perhaps I may follow that up with him afterwards. I am happy to write to him. I am happy to meet him and talk about his points because I agree that they are important points. I hope that that provides the noble Baroness, Lady Morgan, a little more information in the light of which-

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Lord Phillips of Sudbury (Liberal Democrat)

I apologise for interrupting the last gasp of the Minister's excellent reply, but would it be fair to say that the obligation of the Secretary of State on the impact consideration is, to a significant degree, a different undertaking from the consultation to be undertaken by the promoters and that the Secretary of State will have to form his or her own judgment as to impact?

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Baroness Morgan of Drefelin (Labour)

Before the Minister responds to that point, will he also consider the points made by my noble friend Lord Knight about the impact on schools in an area? We talked about funding at Second Reading, in Committee and on Report. It is a theme that has come back again and again and it is an important point. When you are looking at the impact of a new school on an educational community, funding is a key question.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

I was not disputing for one moment that it is an important issue. I was attempting, however crudely, to make the point that, with regard to consultation, which is the purpose of these amendments, I was not clear, as I listened to his points, precisely how they related to the amendments. As for my noble friend Lord Phillips, I have difficulty because he always asks such intelligent, perceptive and well-argued questions. My noble friend asked whether the Secretary of State will have to take the impact into account. The answer to that question is yes.

Amendment 6 agreed.

Amendment 7

Moved by Lord Hill of Oareford

7: Before Clause 9, insert the following new Clause-

"Consultation: additional schools

(1) Before entering into Academy arrangements with the Secretary of State in relation to an additional school, a person must consult such persons as the person thinks appropriate.

(2) The consultation must be on the question of whether the arrangements should be entered into.

(3) "Additional school" has the same meaning as in section (Impact: additional schools)."

Amendment 8 (to Amendment 7) not moved.

Amendment 7 agreed.

Amendment 9

Moved by Baroness Williams of Crosby

9: Before Clause 9, insert the following new Clause-

"Annual reports

(1) For each academic year the Secretary of State must prepare and publish a report containing information on-

(a) Academy arrangements entered into during the year, and

(b) the performance of Academies during the year (see subsection (2)).

(2) The report must include information relating to the performance of Academies which has been provided to the Secretary of State pursuant to-

(a) regulations made under section 537 of EA 1996 (power of Secretary of State to require information);

(b) Academy arrangements.

(3) The first report under this section must relate to the academic year beginning 1 August 2010.

(4) The Secretary of State must lay before Parliament a copy of each report under this section.

(5) In this section "academic year" means a period of 12 months beginning on 1 August."

Photo of Baroness Williams of Crosby

Baroness Williams of Crosby (Liberal Democrat)

I am grateful to the Minister and to the Secretary of State in another place for the consideration and care that they have given to the whole issue of accountability. The Bill has improved considerably as a result of discussions in this House. We have had long discussions about the issue of consultation and governing bodies, and the net effect of this has been that we have a much more accountable and responsible structure in the Bill than we had when it began. For that, and for their willingness to listen, I thank them both.

At an earlier stage in the Bill, when my noble friends Lord Phillips of Sudbury and Lady Walmsley were very concerned about issues of accountability, we came up with the proposal that there should be an annual report to Parliament, and it is still highly appropriate to hold on to that. It is correct that the Government should have accepted this amendment and I thank them for their help in drafting it.

The purpose of the amendment is to enable not only the Select Committee but Parliament itself to consider what is, after all, a major experiment in education. There will be many aspects of that major experiment that people will want to look at. What happens to the quality of schooling, the movement of teachers and school leadership? What happens to the heads and governing bodies? There will be many more questions. So it is appropriate that a wider body than even a Select Committee should be brought into this discussion. One of the important issues here is going to be that the basis on which statistics are laid down in the annual reports should be broadly comparable with those in other related reports. My noble friend Lord Phillips will say more about that.

I shall point to two things in particular that are crucial in this report that we hope will be made available on an annual basis from this year onwards. The first of those is to track the effects of the removal of a great deal of what one might describe as "micromanagement" from the schools. Many of us on this side of the House, and many of us in the coalition, have been concerned about the levels of micromanagement in schools, and we believe that there is likely to be a more innovative approach and a greater deal of discretion for teachers if this experiment succeeds as the Government clearly intend it to do. On the other hand, there is a valid question that hangs in the sky: might we be moving towards a two-tier system of education? The initial applications are a little troubling in that respect. For example, counties such as Surrey and Hertfordshire appear to be responding at a rate of around 10 per cent of the secondary schools that might be applicable to become academies, whereas areas such as Middlesbrough, Knowsley and other poorer parts of northern England do not seem to be caught up with excitement at the idea of academies and are therefore not applying in large numbers to join.

There is another, related factor. So far, the schools that have applied appear, from the London School of Economics study which has been published in the past couple of days, to be atypically low in terms of free school meals and youngsters with special educational needs. These things will need very close observation, discussion and scrutiny. An annual report will be crucial in making that happen.

Again, I thank the Ministers on behalf of my noble friends and me for the consideration that they have given to this issue. I hope that this-which will, in its way, be something of an experiment-will turn out to be a very useful, radical new proposal in managing government and making it more accountable to Parliament than ever before. I beg to move.

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

My Lords, I added my name to this amendment, which I strongly commend to the House. I share my noble friend's concern about the analysis of the socio-demographic groups of the children in the schools that have shown initial interest in this experiment. I hope that the attraction of the programme will spread more widely among the schools in this country if individual schools find it the best option for them.

I am delighted that the amendment is not too prescriptive. Noble Lords have mentioned in the course of our debates many groups about which they have concerns. An opportunity for a vigorous debate every year in Parliament about, for example, the impact of the programme on children with special needs, children in public care, children who are themselves carers, children in primary schools and children with the major deprivations that concern us all, will be a very good contribution to the further development of the programme. It is important that Parliament has a vigorous and widespread debate about the progress of this programme.

Photo of Baroness Sharp of Guildford

Baroness Sharp of Guildford (Liberal Democrat)

My Lords, I, too, support the amendment. It is very important that if it is agreed, or if the Minister agrees to a similar amendment, it is enacted. It has been drawn to my attention that we have, in the various education Acts that we have passed in the past 10 years or so, quite frequently suggested that there should be an annual report. However, very few annual reports have appeared or been presented to Parliament. In particular, it was drawn to my attention that Section 38 of the Education Act 2002, "Communication with schools", relates to a point that my noble friend Lady Williams raised about micromanagement. We were in the process of trying to limit the micromanagement of schools. That particular section requires an annual report, listing all the documents sent by the Secretary of State to governing bodies, to be laid before Parliament. I cannot find any evidence that such a report has ever been made, let alone laid before Parliament or discussed here. Perhaps I should have chased this up earlier. According to Hansard, the noble Baroness, Lady Ashton, who was the relevant Minister at the time, said:

"I am grateful to the noble Baroness, Lady Sharp, who pushed and prodded us to the point that we have reached".-[Hansard, 23/7/02; col. 249.]

I feel that, to some extent, I should have chased this report more than I have, but it makes the point that if we wish for an annual report, we should receive one and it should be considered before Parliament.

Photo of Lord Adonis

Lord Adonis (Labour)

I have absolutely no objection to the amendment. If this is part of the glue that is holding the coalition together, it is clearly a very worthwhile amendment. However, it does not amount to much, since Ofsted already publishes an annual report that evaluates the progress of all schools. It has not been mentioned in our debate, but Ofsted gives specific coverage to the performance of academies in that annual report.

The last Ofsted annual report makes glowing reference to the progress of academies-to the value that they add and, in particular, to the extremely favourable ratings that Ofsted gives them, especially to their governance and management. That is the main difference that academies make; they bring in and enhance governance and management.

The Ofsted annual reports have, over several years, substantially validated the previous Government's decision to start the academy movement. I imagine that this annual report will largely photocopy the annual report which Ofsted produces. It no doubt goes through a different bureaucratic procedure and will allow different opportunities for debate, but it will not substantially add to the knowledge base which the House and the public already have as a result of the Ofsted report. It complicates the legislative framework a little, but that may or may not be a bad thing.

Photo of Baroness Howe of Idlicote

Baroness Howe of Idlicote (Crossbench)

My Lords, I am, I admit, rather attracted to this idea. Maybe it has gone on in the past and it has not appeared before us or we have not followed it up as we should. Nevertheless, we are talking about a situation in which there are going to be rather a large number of changes. It would also have the attraction of being a sort of pre- and post-scrutiny process. It would be a splendid opportunity to see how the whole scene is working, and equally, as the noble Baroness, Lady Walmsley, has said, where there are specific interests such as special needs, to see what is happening about children in care and so on. I think it well worth considering, and I hope the Minister will consider it favourably.

5:15 pm
Photo of Lord Willis of Knaresborough

Lord Willis of Knaresborough (Liberal Democrat)

First, I am extremely supportive of these amendments, but I was amused by the comments of the noble Lord, Lord Adonis, about Ofsted. I am sure he did not wish to mislead the House because that would be unforgivable, but Ofsted does not report on every school every year. In fact, the proposal of my learned friend the Minister is that those that get academy status, particularly those that get automatic academy status because Ofsted has already determined them to be outstanding schools, will in fact be rarely inspected by Ofsted. I think the whole purpose of my noble friend's proposal in this amendment is that we will have comparable data, which we were due to have under the 1996 Act, so that we can make sure that we do not have the scrabble in the media to compare different types of schools but we have a baseline of data on all our schools, including academies, that allow this House, and indeed the other place, to have a sensible, adult and cultured debate about the progress of our schools.

Photo of Baroness Garden of Frognal

Baroness Garden of Frognal (Liberal Democrat)

My Lords, I, too, support this amendment in the name of my noble friends. The process of having an annual report might also greatly reassure all those who have raised concerns about special educational needs in the academies throughout these debates. This would of course be a monitoring activity whereby we could see how the academies were responding in that particular area as well as across the other fields.

Photo of Baroness Morgan of Huyton

Baroness Morgan of Huyton (Labour)

I have a question for the mover of the amendment. While I am not unsympathetic to this amendment, because in a sense it reflects some of our conversations in Committee and on Report, I am not clear whether it suggests a parallel process of monitoring that goes into all academies in the future. If it does, I am unconvinced that the department at present is able or ready to do that. I do not think we have seen much evidence recently of sufficient numbers of civil servants with time on their hands with the capacity to go into schools and produce a whole set of parallel reports. I would have thought a more sensible approach would be to look to Ofsted to see whether it could do some specific work on the new section of academies that otherwise are not going to be reported on regularly. While I have nothing against the spirit of the amendment, I am rather doubtful about setting up a parallel process with a group of schools that is not being applied to other schools.

Photo of Baroness Walmsley

Baroness Walmsley (Liberal Democrat)

I hope the House will allow me to say on behalf of the mover, since clarification has been required, that the analysis by the noble Baroness, Lady Morgan, of the amendment is a misreading of its intention.

Photo of Baroness Morgan of Drefelin

Baroness Morgan of Drefelin (Labour)

Well, another Morgan rises. This is a very interesting amendment. It has prompted quite a fascinating debate at the end of the passage of this Bill. For me the question is: what do we really want this annual report to look at? Is it the free market, free school experiment in which we replicate the experience of Sweden so we can see by evaluating the impact on standards, as they did in Sweden, how standards fell markedly, or the expansion of the very successful Labour Government's academy programme and how the coalition Government have learnt from that and further driven up standards based on our expertise and experience? There are lots of different ways of looking at this report.

I am very much in favour of ensuring that we have the data to evaluate the impact of government policy, that it is properly scrutinised and that Parliament has the opportunity to debate the outcome of that work. What would most interest me is a commitment from the Minister that we will debate this policy of expanding or morphing Labour's academy programme to encompass outstanding schools and its impact, and have some hard data to back up the debate. We are having a conversation around this House that will carry on for some years. It would be good if that were to be supported by hard data. In the past, we have also had real concerns about the impact on children with disabilities and special educational needs, and on children in care. The ability to shine a light on the impact of the policy on their experiences and outcomes would also be of help. I am therefore sure that if that means we are actually going to do something with the data, I would support that. If there are annual reports that have not been published but should have been, I am sure that they are in the process of being compiled and we will see them coming on stream very shortly.

Photo of Lord Hill of Oareford

Lord Hill of Oareford (Conservative)

My Lords, I am very grateful to my noble friend Lady Williams for moving this amendment, not least because it gives me an opportunity, perhaps for the first time in our many lengthy discussions, to disagree with the noble Lord, Lord Adonis. I am grateful for that, if for nothing else-even though I obviously applaud the fact that that the amendment will deliver scrutiny and rightly give Parliament the opportunity to look at the progress of this important policy. As the noble Baroness, Lady Morgan of Drefelin, said, we have had an interesting debate in which all sorts of views have come from some surprising quarters around this House. I welcome the support of her party to openness and parliamentary accountability, which is perhaps a shift from the position that they might have adopted a few months ago, when noble Lords were calling for debates and scrutiny. However, that point may be unfair.

During the second day of Report, I agreed and was keen to reflect on the persuasive arguments brought by my noble friends Lady Williams and Lady Walmsley, and, I accept, by the noble Lord, Lord Hunt, when we debated the importance of parliamentary scrutiny on the progress of academies and the impact of the Bill. I am therefore delighted that my noble friend Lady Williams has returned with the amendment.

We believe-this lay behind the point made by the noble Lord, Lord Adonis-that academies already operate within a highly accountable framework. They are indeed inspected by Ofsted and have to report on their performance to the Secretary of State; but I fully accept my noble friend's argument that this policy marks a significant extension of the academies programme and that it is therefore right that we should report regularly to Parliament on its progress.

On the question asked by the noble Baroness, Lady Morgan of Drefelin, decisions about debates are probably not taken by me; I do not know, and it is not my area. Others in the House authorities will take them. However, if such a decision is taken, we could certainly debate the issue and, after the discussions that we have had so far in Committee and on Report, I can hardly wait for another opportunity to discuss academies.

I thank my noble friends Lady Williams and Lady Walmsley for their help and advice on this issue. It is also true, having heard the noble Baroness, Lady Sharp, talking about prodding and poking, that I feel prodded and poked by many of my noble friends, including the noble Baroness. I am grateful for that. I also thank all those who gave so generously of their time in Committee and on Report. A hard core sat through many hours, including Members of the opposition Front Bench. I should like to place my thanks to them on the record. I am grateful to noble Lords for the contributions made from all sides of this House. I am certain that the Bill is better as a result.

Amendment 9 will increase transparency and accountability to Parliament. That seems the right way forward, and I am extremely happy to accept my noble friend's amendment.

Photo of Baroness Williams of Crosby

Baroness Williams of Crosby (Liberal Democrat)

My Lords, I thank the Minister and will comment briefly on the agreeable words of the noble Baroness, Lady Morgan of Drefelin. The purpose of this annual report is to enable us to find a great deal of wisdom and information on a number of things that we might be concerned about. I mentioned earlier, as did my noble friend Lady Walmsley, the socio-economic structures of those entering the academy pattern and whether there would be considerable diversity, given that it is likely to be a different group according to which academies come forward. Other noble Lords have mentioned their concern about SEN or how far local authorities will play a strategic role. We can get a great deal out of this kind of report.

I have long believed, not least in education, which is a long-term project by nature of the speed at which children grow up, that we would have been wise on all sides of the House if many years ago we had much more carefully considered the effects of what we passed in our respective Houses of Parliament, rather than moving on to the next piece of legislation without learning much from the previous pieces. For all those reasons, this is not an issue of political disagreement; it is a step towards the whole concept of an accountable Parliament in an accountable democracy.

Amendment 9 agreed.

A privilege amendment was made and the Bill was passed and sent to the Commons with amendments.