Nadine Dorries (Mid Bedfordshire, Conservative)

I beg to move amendment No. 363, in clause 34, page 25, line 7, at end add—

‘(2) The provisions of Schedule 4 only apply to land which was purchased and paid for by the local authority or by the Secretary of State.

(3) Schedule 4 does not apply to land which was provided by the foundation or charity for the purposes of the school, or which was purchased by the foundation or charity for the use of the school.'.

It may be reasonable for the Secretary of State to make detailed provisions in schedule 4 for disposal or change of use of land that the state and the local authority or the Department for Education and Skills originally made available to foundation or voluntary aided schools. It is not reasonable, however, for the Secretary of State to have such rights over land that was supplied by the charity itself. Most voluntary  aided schools stand on land that was purchased at some time in the past by the relevant charity—often the Church of England or the Roman Catholic Church. Many such schools were also entirely paid for by the churches before they became voluntary aided, and my own daughter went to a Roman Catholic primary school that was built by the local church and handed over before it became a voluntary aided school.

In effect, the clause requisitions land from such charities, or at least subjects them to the whim of the Secretary of State as to how they may or may not use their land. Given the number of playing fields sold off by local authorities in recent years, it is as well to keep voluntary aided and foundation school playing fields out of the clutches of the Treasury.

The hon. Member for Wakefield (Mary Creagh), who is not present at the moment, has done a substantial amount of work on child obesity—a huge problem in this country. We do not want to see land that could be used for children’s physical activity and for general school activities being taken away, nor do we want the Secretary of State to have the ability to take it away. All Governments have been guilty of selling off school playing fields and school land. The lives of Governments come to a natural end—ours came to a natural end, the present Government’s life may be coming to its end and so shall the life of any future Conservative Administration—and school land needs protection from future Secretaries of State, future occupants of the Treasury and future Governments, whoever they are. Will the Minister therefore review the clause?

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

Clause 34 introduces schedule 4, which makes a number of amendments to the provisions in schedule 22 of the School Standards and Framework Act 1998 that protect land at foundation, voluntary and foundation special schools that was provided, or enhanced, at public expense. Thehon. Lady based many of her opening remarks onthe contention that the clause was somehow about the Secretary of State getting her hands, or the Government’s hands, on land that was provided by a trust or charitable organisation. There is nothing in the Bill, however, about transferring land that was originally provided to the state by a trust or by a Church. Clause 34 and schedule 4 set forth not only a process but considerable protection for land on the basis of its origin, as does the guidance that I have circulated on those provisions. However, we also have to ensure that land that has been publicly provided is equally protected for public use: public assets have protection at a time when the relationship between a school and a trust is discontinued, for example. That is what the provisions are about. The hon. Lady’s amendment would weaken the provisions to protect publicly funded land, and I therefore oppose it.

Schedule 4 provides that where the governing body, foundation body or trustees of a foundation, voluntary or foundation special school propose to dispose of certain land that has been acquired or enhanced using public funds, they will be required to notify the local education authority of their intention to do so and how they propose to use the sale proceeds, which must  be reinvested on capital expenditure. Local authorities in those circumstances can object to the disposal and to the reinvestment proposals and they can claim a share of the value proportionate to the public investment. When there is not agreement, the matter can be referred to the schools adjudicator for determination.

At present, the governing bodies and foundation bodies of foundation, voluntary and foundation special schools can dispose of land held on behalf of the school that was acquired or enhanced at public expense only with the consent of the Secretary of State. The trustees of foundation and foundation special schools also require the Secretary of State’s consent to dispose of land acquired at public expense. The Secretary of State is already involved in decisions about disposal at foundation and voluntary-aided schools.

When trustees propose to dispose of all other land that they hold on behalf of maintained schools that was acquired or enhanced by public expenditure, they do not require the consent of the Secretary of State. They are required to inform the local education authority only after they have sold the land.

Once the trustees have disposed of the land, depending on how they received the public expenditure, they are required either to pay the local education authority a just amount of the sale proceeds or to undertake to the local education authority to use the sale proceeds for the purposes of the school or another existing or proposed school.

Our aim in schedule 4 is to introduce a uniform procedure to be followed when a body or trustees propose to dispose of publicly funded land and will enable the local authority to have some input inthe future use of the land or the proceeds of any disposal. It is the Government’s duty to protect public investment in schools and that is exactly what schedule 4 does.

The hon. Lady did not dispute those aims in introducing her amendment, not least because she focused not on publicly funded land but on land that had not been provided or enhanced by public funds. The schedule and the clause provide safeguards for publicly funded land held by governing bodies, foundation bodies and trustees of maintained schools. I recognise that the amendment aims to ensure that the assets provided by trustees or schools cannot be put at risk. As I said, they should not be, and I assure the hon. Lady that our proposals will not affect the ownership by foundation or voluntary schools of assets that they or their trustees have provided and which have not been improved using public expenditure.

We have discussed the matter with the leading voluntary bodies and overall they are content with our proposals. The amendment would restrict the public safeguards to land purchased and paid for by a local authority or by the Secretary of State. For example, it would mean that land which is acquired or enhanced by the trustees of a school, who actually pay, but where the money comes from the Secretary of State, would not be counted as publicly funded. It would mean that land acquired by the governing body, foundation body or trustees of a school with the proceeds from the sale of publicly funded land would not be protected either.  I do not think that that is what the hon. Lady intended, and I hope therefore that she will feel able to withdraw the amendment.

As the hon. Lady got us on to the issue of playing fields again, it would be worthwhile for me to put on the record that, under section 77 of the School Standards and Framework Act 1998, there are separate provisions for the protection of school playing fields. She is right that the previous Government presided over the sale of a lot of playing fields. However, we do not know how many were sold because there was no way of measuring it. There was no process for the approval of a sale and no requirement for a body to approve such a sale such as the one that exists now comprising of the major organisations interested in those elements. None of that was in position pre-section 77 of the School Standards and Framework Act. We can now measure that and have protections in place, none of which will be put at risk by the proposals in the legislation.

John Hayes (Shadow Minister (Vocational Education), Education; South Holland & The Deepings, Conservative)

The Minister will recall, if she checks the copies of Hansard for earlier Committee sittings, that we had a long debate about that matter and I was wondering whether she will come back to us with an updated survey of playing-field sales since the guidance was tightened by the now Home Secretary when he was Secretary of State for Education and Skills. We can hope only that his record on school playing fields was rather better than his recent one. Will she come back to the Committee with that information?

Frank Cook (Stockton North, Labour)

Order. We will confine our consideration to amendment No. 363.

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

I was reassuring the hon. Lady that section 77, which protects school playing fields, remains in tact. As the hon. Member for South Holland and The Deepings rightly said, we had a lengthy debate about playing fields more generally. One of the difficulties with that debate was that there were times when he conflated local authorities’ playing fields as a whole with school playing fields—

Frank Cook (Stockton North, Labour)

Order. We are discussing amendment No. 363.

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

I apologise, Mr. Cook. I hope that in the context of amendment No. 363 I can reassure the hon. Lady that the clause does not do what she fears that it does.

Nadine Dorries (Mid Bedfordshire, Conservative)

I am reassured by the Minister’s comments, particularly because she has had discussions with the voluntary bodies. I beg to ask leave to withdraw the amendment.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

I beg to move amendment No. 420, in clause 34, page 25, line 7, at end add—

‘(2) Where Schedule 4 makes provision for a case to be referred to the adjudicator and the adjudicator makes a decision in such a case there shall be a right of appeal to the Secretary of State.

(3) The Secretary of State may by regulations make provision in relation to appeals under this section, including provision—

(a) as to the time by which an appeal is to be made,

(b) as to the manner in which an appeal is to be made,

(c) as to the procedure to be followed in connection with an appeal, and

(d) as to the matters to be taken into account in deciding whether to allow an appeal.'.

The amendment introduces the right of appeal against the adjudicator’s decision to the Secretary of State and is based on some of the same objections to the adjudicator as were discussed during our deliberations on schedule 2. In particular, the Billwill give to the adjudicator far more functions and powers than is currently the case. For instance, new powers are being given with regard to land transfers. The Government produced guidance for that: “The Transfer And Disposal Of School Land In England”. On page 9 it states:

“In all these matters,”—

the transfer of land and change of status—

“where the authority and the school cannot reach agreement, the Adjudicator should determine”

the matter. When a school intends to dispose of land and the local authority objects to that disposal, the proposed use of the proceeds, or wishes to claim a share of those proceeds, the authority may refer the matter to the school adjudicator.

Page 11 of the guidance states:

The Adjudicator will determine...whether or not the disposal can be made...whether the school may invest any share of the proceeds which derive from public funding...what proportion of the proceeds is due to the trustees and what proportion is due to the local authority”

and

“what share of the disposal proceeds the school should pay to the local authority”.

So the adjudicator gets power also to order the transfer to the authority of land acquired with public funds and held on trust by a foundation or school trustees for the purposes of a foundation, voluntary or foundation special school.

Page 15 of the guidance states:

“It will be the task of the Adjudicator where there is disagreement to...determine what land will be excluded from transfer”,

to

“Determine whether or not a proposed disposal of surplus non-playing field land should go ahead where it is opposed by the local authority”

and

“Determine whether a school shall reinvest the proceeds as it proposes”.

The adjudicator can:

“Determine how much of the sale proceeds if any of such a disposal is due to the authority”

and

“how much of the public share of proceeds, if any the school shall pay to the authority”

as well as ensuring that the

“governing body, foundation body or trustees give to the authority a suitable undertaking as to the use of the public share of proceeds where he has awarded them”.

He can also determine

“whether surplus land acquired by public funding and requested by an authority as a site for a new school or as the site to which an existing maintained school is to be transferred or for use of other educational or children’s service purposes be transferred to it”.

It is clear, therefore, that the Bill will give the adjudicator significant new powers. The guidance goes on to give examples of how the adjudicator will use his powers. Much of that is good, and we particularly welcome the statement on page 19 of the guidance that

“The adjudicator should support school autonomy and decision making and assume that its proposals are sound.”

As we continue through the guidance we see that the adjudicator wields immense power. Let us consider the case of claims for a share of proceeds. The guidance states that in such a case the adjudicator will have regard to the proportionate value of land acquired from the public, the proportionate enhancement in value, the proportionate contribution of each of the above categories and any payment previously made by the trustees.

The adjudicator is expected to make decisions on the market value of the land that is being disposed, and our amendment would simply introduce a method of appeal on those important decisions, without the expense and limitations of the judicial review process. That will be an appeal to the Secretary of State when people feel that the decisions made by the adjudicator in those complex areas, which involve enormous amounts of expertise, have been erroneous.

Jacqui Smith (Minister of State (Schools and 14-19 Learners), Department for Education and Skills; Redditch, Labour)

To a certain extent, we are returning to our argument about the role of the schools adjudicator with respect to school organisation. The amendment would return to the Secretary of State the final decision-making powers, by providing a right of appeal to the Secretary of State when matters cannot be agreed locally on the transfer and disposal of publicly funded school land that is in the ownership of governing bodies, foundation bodies or trustees.

The provisions of schedule 4 specifically give the schools adjudicator the powers to determine those disagreements. They also ensure that the adjudicator must have regard to guidance that the Secretary of State will issue.

As the hon. Gentleman has said, I have already circulated an illustrative draft of the guidance to members of the Committee. I think that it spells out the balanced and reasonable way in which we will safeguard land that has been publicly funded or enhanced at public expense, or of which a local authority might want to make a particular use. It balances that with the important freedom and autonomy that day-to-day control of assets provides for foundation and voluntary-aided schools. The guidance represents the right balance and, of course, provides guidance to the adjudicator in making decisions about the allocation of the proceeds of certain sales, or the local authority’s requirements with respect to the use of particular land at foundation or voluntary-aided schools.

It is a reasonable set of guidance for the adjudicator to make decisions on, were the decisions to reach the adjudicator. Of course, we hope that there will be a  discussion between the school’s governing body and trust or the local authority and the school about their relative requirements and a local agreement will be reached. That is a much better way to operate than by reintroducing the Secretary of State into those decisions in the way that I outlined in respect of previous amendments. That is not the ideal position to be in.

Amendment No. 56 to schedule 2 proposed to give similar rights of appeal against decisions of a schools adjudicator on proposals for school organisation. It is right that local decisions should be taken at a local level wherever possible. I thought that the hon. Member for Bognor Regis and Littlehampton would agree with that. Giving powers of appeal to the Secretary of State could bring decisions on land ownership at schools back into the political arena. That would not necessarily ensure the right decisions, and they would certainly not be taken at the right level.

The schools adjudicator is independent of the Secretary of State and will take decisions on the merits of each case. Perhaps the hon. Gentleman fears that decisions would be biased in favour of local education authorities, while others might fear a bias in favour in schools, but I am confident that the schools adjudicator will decide each case fairly in the light of the evidence that is presented.

We have backed that up with the draft guidance that I have provided and to which the adjudicator will have a statutory duty to have regard. As I have described, the draft guidance is aimed to steer the adjudicator to a fair balance between the property rights of the schools and the strategic duties of local authorities. The guidance will be further developed in the light of discussions with the Office of the Schools Adjudicator and with other partners. It can and will be revised in the light of experience. The hon. Gentleman might have comments to make about the guidance, which I shall of course bear in mind as we finalise it.

As we pointed out in the previous discussion on the role of the adjudicator, in the case of serious legal mistakes in the adjudicator’s decisions there is the right to judicial challenge by way of judicial review in the High Court. That deals with situations in which the adjudicator makes a decision that is wrong legally. Since that recourse exists, it is not necessary to provide a further appeal to the Secretary of State. I therefore hope that the hon. Gentleman will withdraw the amendment.

Nick Gibb (Shadow Minister (Schools), Education; Bognor Regis & Littlehampton, Conservative)

I raised the issue to demonstrate how significant the schools adjudicator’s new functions are. As the Minister said, we have already had a debate about whether there should be an appeal from the adjudicator. We also had a Division on that debate, and in view of that I beg to ask leave to withdraw the amendment.