Clause 8 - Consultation about conversion

Education and Adoption Bill – in a Public Bill Committee at 3:00 pm on 9th July 2015.

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Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education) 3:00 pm, 9th July 2015

I beg to move amendment 47, in clause 8, page 6, line 15, leave out—

‘is converted into an Academy’ and insert—

‘applies for an Academy order under section 4’.

This amendment makes clear that consultation on an application for Academy status must occur before an application for an Academy Order is made.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss amendment 48, in clause 8, page 6, leave out lines 18 to 22.

A consequence of requiring consultation before an application for an Academy Order [see amendment 47].

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

What a shame—I really thought that we might have won that one!

Under the Academies Act 2010 there is a duty to consult on an application for academy status, albeit a fairly loose one, put on the governing body to consult who “they think appropriate”. Such a consultation can happen before or after an academy order is made and it is only on whether a school should be an academy. There is no such duty on the Department for Education, despite the fact that in many cases it will require the conversion to happen, nor is there any consultation on who should be a sponsor.

On schools eligible for intervention, the clause removes all requirements to consult, which is a familiar theme in the Bill. Earlier last month, we heard the Secretary of State present the Government’s true intentions in the Bill: it is seen as a way to

“sweep away the bureaucratic and legal loopholes previously exploited by those who put ideological objections above the best interests of children”— otherwise known as parents. The objections she referred to are mostly those of parents with affected children and members of the local community. It really has come to something when parents’ genuine concerns about the Government’s rather dogmatic approach to schools policy are treated with such contempt by Ministers.

Amendments 47 and 48 would rescue the requirement to consult, which vitally gives a voice to the local community that the schools in question serve. It has been said that, under the clause, governors will no longer have a duty of care to their children; instead they will have a duty to implement Government policy, and that that in itself is an attack on freedom of speech. It is not surprising that governors around the country are concerned.

The National Governors’ Association said:

“The proposed Bill removes the requirement to consult parents, pupils and staff on the decision to change the status of the school, if the school is eligible for intervention and subject to an academy order. We accept in clear cut situations, school improvement should not be delayed, but in the interests of transparency, NGA suggests that the case of an academy order over and above other forms of interventions, in particular an IEB, should be made public.”

We know that the Department has a history of favouring closed-door policy making and believes that it always knows better than everyone else, so it is a slight inconvenience for the Department that we live in a democracy. The Government do not always know best, so we should not assume that they always do.

Photo of Nick Gibb Nick Gibb Minister of State (Department for Education)

Clause 8 removes the requirement to consult where a school is eligible for intervention. An academy order will be made either under the existing section 4(1)(b) of the Academies Act 2010, where a school is eligible for intervention, or under the new section 4(A1), where an academy order must be made because a school has been rated “inadequate” by Ofsted. The effect of the clause is that, where a school is eligible for intervention, a consultation is not needed on whether it should become an academy, but a governing body will still need to consult if it proposes to convert to academy status by choice and is not eligible for intervention.

Amendment 48 would require the governing body to consult when a school is to become an academy as a result of intervention by the regional schools commissioner. The Bill makes it clear that any school judged by Ofsted to be “inadequate” will become a sponsored academy. In some cases, a regional schools commissioner may also require schools that are eligible for intervention for other reasons to become sponsored academies, such as where a school has met the coasting definition and the regional schools commissioner has judged that it does not have a sufficient plan to improve. Where a school is underperforming and an academy solution is required, we want the improvements in standards to begin immediately. The process should not be delayed by ongoing debate about whether the school should become an academy. An academy solution, with the support and leadership of an effective sponsor, is the best way to turn around that school.

Our experience over the past five years shows that, in many cases where it was most needed, transformation has been delayed by unnecessary debate, delaying tactics and obstruction of the process. Twydall school, for example, was judged to be inadequate in March 2014. The Department wrote to the school and to the local authority within five working days of the Ofsted judgment to outline that an academy solution should be considered, and in May 2014 the governing body voted to become an academy. Subsequently, however, there has been a series of drawn-out consultations, which have prevented a sponsor from being agreed and put in place. Between June 2014 and May 2015, Ofsted conducted four section 8 monitoring inspections and found that the education of pupils at that school has continued to suffer throughout the period of delays caused by consultation. The Bill seeks to put an end to such problems, which do nothing to improve the quality of education that pupils receive. Amendment 48 would serve only to defer those essential improvements, which is why I urge colleagues not to accept it.

The position is different for high-performing schools that wish to benefit from the additional freedoms that academy status provides. Such schools are currently required to consult on academy conversion. They should discuss that decision with staff, parents and others who have an interest, and they should take account of those views before entering into academy arrangements with the Secretary of State. Clause 8 makes it clear that that requirement will continue, but amendments 47 and 48  propose that that approach should change, and that the consultation by a governing body that proposes to convert voluntarily would have to take place before the school applies for an academy order, rather than, as currently required, before conversion is finalised—a later stage in the process.

There are good reasons why it is usually most appropriate for a formal consultation to take place after the academy order is made. Before the order is made, the governing body will prepare an application to the regional schools commissioner to convert to academy status, and that application may not necessarily be accepted. For example, the RSC may judge that a school that has applied to convert to being a stand-alone academy should instead join a multi-academy trust or benefit from the support of a sponsor. For that reason, it will generally be most appropriate to consult after the regional schools commissioner has considered the application. If the application is approved, the regional schools commissioner will make an academy order. This is an enabling order. It is a first step in the administrative process that a school will go through to become an academy. It acts as an agreement, in principle, that the school will be permitted to become an academy, but it is not a guarantee. There are further processes between an academy order being made and a school becoming an academy to work through, such as the arrangements for the transfer of staff, land and assets. By consulting after the academy order is made, the governing body has more details about the implications of conversion that will help inform the views of staff and parents.

The crucial decision-making point is when the school and the Secretary of State enter into academy arrangements, which is when the funding agreement is signed. It will therefore be more meaningful for schools voluntarily converting to academy status to consult about whether to enter into academy arrangements with the Secretary of State at that point in the process, so that staff and parents can give informed consideration to what is best for the future of the school.

Although the statutory consultation generally takes place after an academy order has been made, governing bodies are able to carry out some consultation before making their application, if they wish. For example, they may informally consult the staff prior to making an application and then consult more widely after the academy order has been made. Clause 8 does not prevent the first informal consultation from happening for schools voluntarily converting. I therefore do not agree that the approach to consultation proposed by the hon. Members for Cardiff West and for Birmingham, Selly Oak in amendments 47 and 48 is necessary or appropriate. I urge them not to press their amendments.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

We remain concerned about the withdrawal of consultation in the Bill for all sorts of reasons. It is not my intention to press the amendments to a vote, but we have laid our concerns on the record and they remain. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I beg to move amendment 49, in clause 8, page 6, line 24, leave out “any” and insert “a majority of”

Currently, legislation does not require a majority decision of the Governing Body of a Federation to apply for a federated school to become an Academy. This amendment rectifies this position.

This is a probing amendment, which reflects the fact that legislation currently does not require a majority decision of the governing body of a federation to apply for a federated school to become an academy. It might be a sensible provision that the majority of the governing body of a federation applying for a federated school to become an academy should agree with that decision. If a majority of concerned governors oppose the academisation of a federated school, it seems that, superficially, the desires of that majority ought to be honoured. I should be grateful if the Minister would elucidate that point.

Photo of Nick Gibb Nick Gibb Minister of State (Department for Education)

The amendment seeks to change the consultation process required for a federated school to become an academy. It proposes that the decision on who to consult when making an academy order application for a federated school should be made by a majority of the governing body, not simply by the governing body, as explained by the hon. Member for Cardiff West. The amendments would have no material effect because all decisions of a governing body, including who to consult, are already made by majority vote. Therefore, we resist the proposed amendment.

If, however, the intention of the amendment is to change not the consultation process, but the application process for a federated school, I can confirm that the Department has recently consulted on changes to regulations to require at least 50%—not 100%—of prescribed governors to approve an academy order application. The consultation closed on Friday 3 July and we are now considering the response. Any changes will be made to the regulations in September. Therefore, there is no need for the matter to be addressed through the amendment or in primary legislation. On that basis, I urge the hon. Gentleman to withdraw the amendment.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I am grateful to the Minister for that clarification. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Nick Gibb Nick Gibb Minister of State (Department for Education) 3:15 pm, 9th July 2015

Clause 8 inserts into the Academies Act 2010 a new section 5 concerning consultation on academy conversion. The new section 5 preserves the requirement to consult on the proposed conversion in the case of schools that are voluntarily proposing to opt for academy conversion, and maintains the freedom of the school’s governing body to carry out such a consultation before or after the academy order, or an application for an academy order, has been made. As now, consultation must be with those the governing body think appropriate. The significant difference made by this clause is that the new section 5 provides that where the academy order is to be made because the school is eligible for intervention, there is no duty to consult.

Where a school is underperforming and an academy solution is required, we want the transformation to take place from day one; we do not want the process to be delayed through debates about whether a school should become an academy. Our experience, as I have said, is that in many cases where it was most needed, transformation was delayed by such debate, delaying tactics and obstruction of the process.

I have spoken already about the case of Twydall school. Another example in which the principle of conversion was agreed but the process became unnecessarily drawn out involved Bydales school in Redcar and Cleveland. That school was found by Ofsted to require special measures in December 2013, but did not benefit from a sponsor until February 2015. Outwood Grange, a high-performing sponsor with a strong track record, was identified for the school, but the governing body and the local authority were not supportive. The process was delayed while the local authority attempted to persuade others to sponsor the school, despite none of the alternatives having the experience and track record of Outwood Grange. That resulted in the process taking twice as long as it should have done, while the school remained in special measures.

Photo of Louise Haigh Louise Haigh Labour, Sheffield, Heeley

Outwood Grange operates an academy in my constituency, and if Outwood Grange were about to take over another school in my constituency, I would want parents and pupils to be aware of its track record of governance of that school, because it has expelled a number of SEN pupils and pupils from backgrounds of high deprivation. Headteachers of other primary schools in my constituency have expressed grave concerns, as have staff at the school. I am particularly interested to hear the Minister give the example of Outwood Grange, given my experience and the experience of parents and pupils in my constituency.

Photo of Nick Gibb Nick Gibb Minister of State (Department for Education)

I cannot comment on the specific example that the hon. Lady gave, but Outwood Grange as an academy sponsor is highly effective; and so far as the school that I cited, Bydales school, is concerned, it is still early days since Outwood Grange took it over, but the indications are that it is making good progress.

The Bill seeks to put an end to the delays that I have described. They do nothing to improve the quality of the education that pupils receive. We want the transformation of a failing school to begin from day one. However, this clause retains the requirement that where the governing body of a school is proposing voluntarily that it should become an academy, it must consult on whether the conversion should take place. In these schools, the governing body is expected to take account of that consultation process in deciding whether to go ahead with becoming an academy.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Clause 8 represents an extraordinary departure from the normal processes of governmental decision making. The Secretary of State is empowered under this clause to make a decision without making any attempt whatever to listen to pupils, parents, teachers, governors, employers—anyone at all who might be thought to have some knowledge of the situation on the ground. In fact, concern has been expressed by the NASUWT in its briefing that the provision might breach article 26(3) of the universal declaration of human rights:

“Parents have a…right to choose the kind of education that shall be given to their children.”

Of course, we know what the Secretary of State thinks of other people’s views, because her press release about the Bill said that

“campaigners could delay or overrule failing schools being improved by education experts by obstructing the process by which academy sponsors take over running schools.”

That is really the attitude expressed in the Bill to any concerns, or anybody who ought to be consulted. Of course, it is based on the absolute presumption that the Secretary of State’s view and solution is always best, but as we have demonstrated time and again during our debates, that is not always the case. To put it generously, there is no evidence that her case has been made and that academy conversion is more likely to lead to improvement in an inadequate school than adopting other school improvement approaches in particular circumstances. And there is plenty of evidence, from Ofsted and from the DFE’s own analysis of results, that there is enormous variation in effectiveness among sponsors. That is why, as we found out earlier, Ministers always mention good sponsors when talking about academies but never really emphasise the bad sponsors until we press them and make them do so. The idea that every sponsor who comes forward has some unique level of expertise is frankly not true.

What is most likely to improve a particular school in particular circumstances is a matter of judgment. Exercising judgment requires evidence, and gathering evidence means listening to those who have views. Dismissing those who have different experiences and different views is not an acceptable, or even a sensible, way to carry out any branch of government. It inevitably leads to bad decisions, and certainly worse decisions than would have been made in general, had they been made after obtaining the views of those who have some knowledge locally.

There is a case generally for consultation and a case for consultation on specific issues. Local communities should not have particular sponsors imposed on them without having some say in the matter. They are not just interchangeable; they have different and particular approaches to managing schools and the curriculum, and they have different records in terms of their effectiveness and of managing public money. Despite the strenuous efforts of Ministers to prevent Ofsted from inspecting academy chains, we know from Ofsted how inadequate some chains are. From the Select Committee evidence, for example, we know that one chain, the Kemnal Academies Trust, takes pride in having sacked 26 out of 40 headteachers and holding the axe over the heads of the rest, with targets to be met every six weeks. Not surprisingly, perhaps, Ofsted did not think much of its record.

Communities are entitled to say that they do not want this regime locally, and then there are the cases in which the proposed sponsor is given the job of carrying out the consultation. That is hardly a way of guaranteeing that the process is open and above board. It is wrong that it is done behind closed doors—not only in principle, but it makes the whole process of improving a school harder than it needs to be. A sensible Government negotiate and seek to persuade local people. They listen and are prepared to amend their views, and recognise that there is not only one source of wisdom. Schools are not lollipops to be doled out to Ministers’ friends, supporters and party donors. Government should not leave themselves open to the charge that they have favourites and will support them regardless of evidence to the contrary.

It may ultimately be that after consulting, the Government decide to carry on with their initial view. That is fine, but not to consult at all is wrong. On Second  Reading, I thought my hon. Friend the Member for Walsall South (Valerie Vaz) put it very well:

“Amazingly, the Bill says that parents should not be consulted, so the very people who know about a school will not be allowed to have a say. In this country, we consult, we do not dictate, and that is one of the key areas that judges will look at in considering whether a decision is lawful.”—[Official Report, 22 June 2015; Vol. 597, c. 684.]

The Minister and the Government are opening themselves up to that kind of challenge. I agree with my hon. Friend and we will continue to pursue this matter as the Bill progresses, although we will not press clause stand part to a Division.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.