Frank Cook (Stockton North, Labour)

I remind the Committee that with this we are discussing amendment No. 155, in clause 20, page 15, line 18, at end insert

‘and, in the case of secondary schools, following consultation with any relevant feeder primary schools.'.

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

I was about to start speaking when we had our break for Education and Skills questions, which we all enjoyed. I imagine that the Under-Secretary has just returned from researching the answer to the question that I asked him, because he wants to reply to me in writing in more detail.

The amendments proposed by the hon. Member for Brent, East (Sarah Teather) would make it more difficult for a school’s governing body to determine its own foundation proposals. That would contradict the principle behind the Bill. I understand the hon. Lady’s argument. She spoke of consistency: the way in which things are organised in other bodies and the desire to apply similar practice to the Bill. She believes in her case, which has some merit, but she must know that in practice the amendments would make it more difficult to realise the Bill’s aim.

Why should a proposal require a two-thirds majority? We do not make such stipulations in respect of other important matters. How would it be, for example, if we suggested that a two-thirds majority were needed for a vote on the euro? I have not heard the Liberals call for that. What if we had suggested that a two-thirds majority was required in respect of the devolution proposals passed by the House when my hon. Friend the Member for Bognor Regis and Littlehampton (Mr. Gibb) and I were new Members? We did not hear the Liberal Democrats make that case either. I think that the amendment is a cover for the intention that I am sure lies deep in the breast of the Liberal Democrats to see the proposals in the Bill falter, if not fail. The tradition in this country, as you  know, Mr. Cook, is for votes to be carried by a majority. It should be up to schools’ governing bodies to determine their own procedures.

Why is it necessary to stipulate in the Bill that before making proposals secondary schools need to consult feeder primary schools? I qualify my remarks by saying that of course I understand that if a school acquires a trust it will have an impact on the wider community. I do not underestimate the significance of that, but there is a danger that such a consultation process might once again delay and frustrate, or even deter or prevent a school from going down the road that is the purpose of the Bill.

It is right that we press and probe the Government on these matters and I imagine that that is the purpose of the amendments, but I am not confident that such consultation would not be less helpful than it was justified. For that reason, I urge my hon. Friends, should the Liberals press the amendments to a vote, to resist them.

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

As both hon. Members who have spoken on the amendments have accepted, both amendments would insert new requirements into the process of a school acquiring a trust, and arguably make it harder for a school to acquire a trust. I understand that the hon. Member for Brent, East in seeking reassurance through at least one of the amendments, and I hope to be able to provide that. However, in respect of the proposed requirement for a two-thirds majority, we have made it clear that although the option of acquiring a trust will be available to all schools, no school will be forced to acquire a trust. We believe that that decision should be for the individual school, which is why in the Bill we have taken the permissive and enabling approach that we discussed this morning.

Acquiring a trust should be a reasonably straightforward process. It is for the governing body of each school to decide whether it wants to publish proposals to acquire a trust, and it should normally be for the governing body to decide the proposals. I have provided for the Committee the guidance that will spell out the process of consultation and local accountability that we would expect to be gone through. That will ensure that there is scrutiny of and accountability for the proposals. In the end, however, the most important safeguard of the appropriateness of trusts will be the common sense of parents and other stakeholders in the local community, as well as the governing body.

Greg Mulholland (Shadow Minister (Schools), Education & Skills; Leeds North West, Liberal Democrat)

I hope that the Minister will deal with the question whether to require a two-thirds majority rather than a straight majority. Does she not feel that a 51—49 per cent. split in a vote on a governing body could lead to a lack of confidence in a new trust? That would not be a strong basis for setting up a new type of school.

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

I do not want to be pedantic, but for there to be a 51-49 per cent. split on a governing body, it would have to have 100 members, and obviously that will not be the case. As for the two-thirds majority for which the hon. Member for Brent, East has argued, we  do not believe, for reasons similar to those suggested by the hon. Member for South Holland and The Deepings (Mr. Hayes), that it would be right to require a governing body to act by a two-thirds majority when deciding on trust acquisition proposals.

It will be worth while to set the issue in the context of other decisions that we expect governors to make. Such decisions would normally be taken by a simple majority of governors present—in fact, at present there is no decision that we expect them to take by two-thirds majority. We are introducing one such decision through the Bill, and we will examine the specific rationale for that when we discuss the relevant clauses, but requiring a two-thirds majority when deciding on trust acquisition proposals would set a much higher threshold than is required for other decisions. Given the considerable safeguards in the process, the local accountability provisions, and the ability of the local authority to refer proposals tothe adjudicator in certain circumstances, a simple majority is appropriate.

Perhaps I can reassure the hon. Member for Brent, East more on amendment No. 155, which would require the governing body of a secondary school wishing to acquire a trust or to allow a trust to appoint a majority of its governors to consult any relevant feeder primary schools. Of course we would expect the governing body to consult a range of local partners, and we have set out certain minimum consultation requirements in the draft School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations, which are among those that we have made available to the Committee. The list in those draft regulations of those who must be consulted includes

“any school in the area likely to be affected by the proposal.”

I think that that covers the category suggested in amendment No. 155. I hope that that reassures the hon. Lady that the requirement, which I agree is important, is already covered and that she will not press the amendment.

Sarah Teather (Shadow Secretary of State for Education and Skills, Education & Skills; Brent East, Liberal Democrat)

I am grateful to the Minister for putting on record that the regulations that she mentioned cover the matter raised in amendment No. 155. That is helpful and reassuring. I am, however, sorry that the Government have not accepted our suggestion in amendment No. 154, which would bring schools’ governing bodies into line with businesses and most other organisations, which require a majority of at least two thirds, if not three quarters, when making a major change to their constitution or articles.

I recognise the Minister’s point that a 51-49 per cent. vote is unlikely, but there will be occasions on which a chairman’s casting vote could make the difference. That would be most unwise. I shall not press the amendment to a Division, but we will consider the matter and whether we wish to table new amendments on Report. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment No. 36, in clause 20, page 15, line 19, and leave out from beginning to ‘and’ in line 20.

Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss the following amendments: No. 37, in clause 21, page 15, line 25, leave out subsection (1).

No. 38, in clause 21, page 15, line 30, leave out subsection (2).

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

I am delighted to propose these amendments, which would narrow the opportunities for local authority meddling, thereby increasing the real power given to school governing bodies, as opposed to secondary authority under the primary power of LEAs. Let us not forget that that is what got us all so excited about the White Paper and the Bill in the first place. There was real excitement in the House and more widely that a new horizon could be seen, a path had been set, a way to the future had been made clear.

No real power is invested in governing bodies if they can be undermined by LEAs. Throughout our deliberations, members of the Committee with different perspectives on the matter have pressed the notion that governing bodies should have such real authority. In October, the Prime Minister said:

“By the end of this third term, I want every school that wants to be able to be an independent, non fee-paying state school, with the freedom to innovate and develop in the way it wants and the way the parents of the school want, subject to certain common standards.”

This is not the first time that the Prime Minister’s words have rung through this Committee. They were quoted by my hon. Friend the Member for Gainsborough (Mr. Leigh). His views and those of the Prime Minister are not a million miles apart these days: they have moved closer together in the years that they have both been in the House. In September, the Prime Minister said

“The logic of changing to the specialist schools, of starting city academies, of giving greater freedom to schools in who they hire, what they pay, how they run their school day, is very clear.”

Memorably, he went on to say:

“It is to escape the straitjacket of the traditional comprehensive school and embrace the idea of genuinely independent non-fee paying state schools.”

So, independence is the key to the Bill, and the amendments focus on precisely that.

Lest we forget what true independence means, it means freedom from the control or influence of others. We do not have time for a philosophical debate, and I am sure that you would not allow it, Mr. Cook, but perhaps a little philosophy might be entered into our future considerations, so that we can discuss the nature of autonomy and freedom; conservatism and liberalism. However, I shall draw my remarks closer to the amendment, as you would expect me to.

How do subsections (1) and (2) of clause 21, which provide that regulations under clause 19 must allow the local authority to refer proposals to the adjudicator in certain circumstances, square with the promise of independence? The official Opposition are worried about the role of adjudicators. We do not say that there is no role for them, but we are worried that their role might well act to the detriment of the core purpose of the Bill.

We welcome the guidance, which states that the local authority may refer proposals to the adjudicator only  on the grounds of inadequate consultation by the governing body, failure by the governing body to have regard to responses to consultation when publishing its proposals, or concerns that the trust will have a negative impact on school standards. Of course it is important that there are checks, balances and safeguards to ensure that the principle that has run through our considerations—that we must drive up standards in schools for the benefit of our children—is paramount.

The Minister might choose to answer certain questions on the guidance and regulations. What does “standards” mean in that context? Does it apply to standards in the school, or in the area more generally? Those questions relate to some degree to the comments of the hon. Member for Bury, North (Mr. Chaytor), who articulated the important view that to see a school in isolation, outside the context of its community, the effect that it might have on the community and the education of children in it, would, in his judgment, be a cause for some concern.

What evidence will the adjudicator need that a trust will have a negative impact on standards before he intervenes? If that is not defined clearly, the adjudicator’s role might be notional or extremely intrusive. Neither we on one side of the argument, nor the hon. Gentleman, who is perhaps on the other—I do not wish to state his opinion for him—can be clear about that if the regulations and guidance remain as vague as they are. I hope that the Minister can reassure us both, and if she can achieve that simultaneous reassurance, she will have become an even more accomplished Minister than I know her to be.

Ominously, page 8 of the guidance states:

“The local authority may have concerns of its own about the proposals or act in response to representation from parents or other stakeholders.”

Of course, we recognise that parental involvement is critical, and if parents express profound concerns it would be perfectly proper to consider them, but the term “other stakeholders” opens up a very wide field of vision indeed. It not unreasonable to say that it could refer to all sorts of people, not all of whom might have the best interests of the school at heart because they might have their own, vested interest. Is the guidance saying that one objection, on any grounds, would be enough for referral to the adjudicator, even though those objections might be spurious or vexatious?

Page 9 of the guidance says that

“The decision of the governing body or Schools Adjudicator is expected to be final.”

It goes on to say that if a Secretary of State were to investigate whether a governing body had acted unreasonably, she would not be able to substitute her decision for that of the governing body. Once again, the measures represent a great increase in the power of the adjudicator, from whom there is no appeal apart from the long and expensive process of judicial review, which in many circumstances would be beyond the reach of a group of parents or other concerned people.

We do not accept that the adjudicator is better able to make a decision than the governing body. Given that we are defending the role and significance of the governing body in the process, I hope that those Members who have articulated their own concerns about the pivotal role of governors—Liberal Democrat Members and other Committee members—will see fit to support the amendments.

Sarah Teather (Shadow Secretary of State for Education and Skills, Education & Skills; Brent East, Liberal Democrat)

I am slightly bemused by the amendments. On Tuesday, the Conservatives tabled a series of amendments that tried to add in another tier of appeal, yet in the present amendments they are trying to remove the first tier of appeal. That seems slightly inconsistent, unless one believes that there should never be any tier of appeal—no means to ensure that due process occurs. That is what we are discussing—making sure that there is a body to which organisations can appeal if due process has not been followed. Surely the Conservatives recognise that, if due process has not been followed, there should be some means to prevent acquisition of the foundation and a move to trust status. One cannot have a system in which that can be railroaded through at all costs, regardless of any safeguards.

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

I take the hon. Lady’s point. I suppose that we would be more comfortable if we felt that the guidance had made clearer the grounds on which an appeal might succeed or flounder. However, because the guidance is of the type that I described, with its references to global standards and the effect on the wider community, and because there may be uncertainty over where the process might lead, we are worried that an appeal might be a vexatious process rather than a reflection of genuine concerns.

Sarah Teather (Shadow Secretary of State for Education and Skills, Education & Skills; Brent East, Liberal Democrat)

Those are matters on which the Minister can reply. At the heart of our concerns about the amendments is our belief that the adjudicator has a role to play—that of an independent source for people to approach when they wish to appeal or are concerned about the process. We do not want that part of the system to be removed, so we shall oppose the amendments.

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

As we have heard, the amendments would remove what we believe is an important safeguard in the process of a school acquiring a trust, which is the ability to refer such proposals to the schools adjudicator in certain quite closely prescribed circumstances. We are confident that many governing bodies, local communities, parents, neighbouring schools and local authorities will see the considerable benefits that trust status can bring to schools across the country. The fact that we have already seen considerable interest in considering that route is evidence of that.

However, it is right that we should put in place a proper and reasonable process to allow local accountability and scrutiny and in some cases—I hope that they will be exceptional—for the local authority, as the local democratically elected body, to refer such proposals to the adjudicator. That is an important safeguard, which will enable an impartial and experienced third party to determine the proposals on  the basis of what I think are clear criteria. If the hon. Member for South Holland and The Deepings looks at paragraph 14, “Criteria for approval” by the decision maker, which in those circumstances will be the adjudicator, he will see that we are clear—indeed, fulsome—about what is involved in making that decision. I hope that that reassures the hon. Gentleman. The criteria detail the sort of evidence, the legal criteria and the impact on standards that we would expect the adjudicator to bear in mind when determining those proposals.

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

The question is how one might project a view of the impact on standards. Given that, at that point, the school does not have the status that it would have if it acquired a trust, only a prediction of the effect that that might have on standards in other schools in the area is possible. In making a judgment on that sort of prediction about that projected status and its projected effect, it would be hard for the adjudicator to sort out what is real from what is imaginary, would it not?

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

No, frankly I do not agree. We make clear on page 11 of the guidance notes the sort of factors that would constitute evidence of the contribution that a trust would make to standards. If I read out the six bullet points—I shall not—hon. Members would see that the criteria for the evidence that the adjudicator will be able to use to confirm whether that trust will contribute to raising standards are reasonably, clear and broad.

Subsection (5)(a), which amendment No. 36 would delete, makes the necessary provisions for the governing body to determine trust acquisition proposals, subject to regulations made under clause 21(1), which amendment No. 37 would delete, to enable the local authority to refer those proposals to the adjudicator. Clause 21(1) requires that any regulations on the determination of trust acquisition proposals by the governing body should include powers for the local authority to refer the proposals to the adjudicator. In turn, clause 21(2), which would be deleted by amendment No. 38, defines the types of school organisation change to which the regulations made under clause 21(1) must refer. It is clear that the effect of the amendments would be to remove that possibility.

In defending the process through which a local authority would have to go in order to refer the proposals, I refer the Committee to the draft illustrative School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations as well as to the guidance. They make clear the grounds on which a local authority would be able to refer the proposals to the adjudicator. The first two grounds are inadequate consultation—a governing body failing to meet the requirements set out in regulations or to have regard to guidance on consultation—and a failure to have regard to responses to a consultation. The hon. Member for Brent, East was right to argue that, if a consultation has been inadequate, there should be an opportunity to refer the proposal. That is why those criteria are in the regulations.

The third criterion is the concern that a trust would have a negative impact on standards. I have outlined the guidance in which we spell out the evidence that will be used by the decision maker to determine whether that would be the case. We are confident that the impact of taking on a trust will be to help to drive improvement in standards, but if that fundamental rationale for the policy was questioned, it could be the basis of a referral to the adjudicator.

The three criteria in the regulations build on the commitments that we gave in the White Paper. They are not intended to be restrictive or to allow local authorities to block proposals to acquire a trust for no good reason. They are an important back-stop and safeguard for parent power, local autonomy and ensuring that the raising of standards is at the heart of every proposal for a trust. On that basis, I hope that the hon. Member for South Holland and The Deepings will not press his amendments.

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

I am not sure that the right hon. Lady has entirely satisfied me and my hon. Friends. There could be a series of vexatious complaints and objections to proposals by those who seek to block or delay them. However, I hear what she says about the guidance. As a result of this debate, I hope that she might see fit to review the guidance if my prediction of vexatious attempts to block progress is realised. She has the right to do so, and in the interests of making the Bill work I am sure that she will want to. I hope that, on that basis, we can move forward in the spirit of consensus that has imbued our discussions and thinking thus far.

Because the Opposition are ever anxious to be helpful and keen to make progress, I beg to ask leave to withdraw the amendment.