Amendment 55 is a probing amendment and seeks to discover the Government’s thinking behind why some people are placed under a duty while others are not. It is not necessarily about whether the Opposition think that the duty itself is the correct approach. The other two amendments are a consequence of amendment 55.
Clause 10 places a duty on a school governing body and the local authority to “take all reasonable steps” to help the conversion of a school when forced academisation is required under clause 7 or when the Secretary of State chooses to go down the forced academisation route for another reason. If the Secretary of State notifies a school and local authority that they want a specific academy sponsor, the school and local authority must “take all reasonable steps” to help the Secretary of State and the sponsor to reach a funding agreement.
Clause 11 enables the Secretary of State to give specific directions to school governing bodies and local authorities about the forced academisation process, presumably when they think that the local authority or school governing body are not taking reasonable steps. Such directions relate to section 8 orders regarding the transfer of staff, contracts for photocopying, cleaning, school dinners and so on, moveable property such as minibuses, intellectual property used by the school and part 1 of schedule 1 orders to do with the transfer of land owned by the local authority and not by a governing body, foundation body or trustees, which is covered by part 2 of schedule 1 of the 2010 Act.
Bodies other than the maintained school governing body and the local authority have a role to play in expediting academisation, the most important of which is the owner of the school building and land when they are not owned by the local authority or a foundation school without a trust. Voluntary-aided schools, voluntary-controlled schools and foundation schools with a trust are likely to be occupying land owned by bodies that may not be directly concerned with the academisation process. In particular, the bodies listed in new section 5A(2) to the Academies Act 2010, as inserted by clause 9, are bodies that either own the school land and buildings or have an interest in preserving the religious identity of the school on forced academisation, including the trustees of the school, the person or persons appointed by the foundation governors and, in the case of a school with a religious character, the “appropriate religious body”—defined for Church of England and Roman Catholic Schools as the diocesan authority, but all faith schools are included.
I accept that this is a complex area, but we need clarity. There was a time when any proposal by the state to remove Church-owned land occupied by Church schools from Church control might have resulted in some considerable controversy, but times have changed. Sorting land ownership on academisation can be a lengthy process that has nothing to do with the school governing body or local authority. These amendments are designed to probe why such bodies are not included in clauses 10 and 11, without accepting the premise of the clauses.
When the ownership of land is transferred, lawyers get excited and get involved. Lord Nash agreed with me when I raised the matter. He said:
“Lawyers do argue on those issues”.––[Official Report, Education and Adoption Public Bill Committee, 30 June 2015; c. 90, Q211.]
He commented that the delays were not “extensive”, but they are delays nevertheless. Perhaps the Ministers can quantify those delays. One of the law firms with a financial interest in such things is Lee Bolton Monier-Williams, which has helpfully placed an article on its website that analyses the issue:
“Neither the school governors of voluntary or foundation schools (acting in their capacity as the trustees of the GB as a charity) nor the site trustees of such schools may be required to facilitate conversions or directed to do so if to comply would result in a breach of their trust. This is not recognised in the Bill as it stands and appears to us to be a major defect.”
In other words, these lawyers see the difficulties arising from the dual responsibility of school governors who are charity trustees when the Secretary of State selects the sponsor in a forced academisation process. They continue:
“Secondly the question will we think inevitably arise as to whether an academy (or a school about to be converted into an academy) may lose its religious character without closing and being re-opened as a new institution. The DfE has imposed ‘as is’ in respect of gaining or losing a religious character with regard to conversions under s4(1)(a) but we suspect may want to remove a religious character without closure in respect of conversions under s4(1)(b) or under the new s4(A1).”
New section 4(A1) of the Academies Act 2010 is about the forced academies route. The briefing goes on:
“The Bill certainly reads as though this is either expected to be the case or the issue has not been considered and will become a problem. We argue most strongly that removal of religious character without closure is not possible and that the power in Regulations for the Secretary of State to remove independent schools from the list of those designated with a religious character cannot be exercised if the objective criteria governing designation still apply.”
As the Government have not sorted out that issue, lawyers are likely to get involved. That means delay and cost, which are likely to be borne by the local authority as the maintaining authority, so there will be an overall increase in costs to the public purse.
Ministers should know what is going on and what is delaying academisation. Helpfully, the Commons Education Committee inquiry asked about the academisation process and faith schools. Regrettably, only three local authorities responded. One of those authorities, Kent, which has many Church schools, commented:
“The proposed sponsor sometimes makes considerable extra demands upon the LA and its financial and capital resources towards the end of the process of transfer of a school to an academy chain. This slows down, and can hinder the conversion process and can interfere with the urgent school improvement work required.”
That sounds like the point in the academisation process where lawyers start to make their money, and it could result in significant delay to an academy order. That delay is caused not by the issues outlined by the Minister—ideologically driven people, otherwise known as parents—but by the legal minefield involved.
Kent County Council’s response to the Education Committee continues:
“Considerable public resource and LA Officer time is expended unnecessarily waiting for sponsors to decide to proceed with their initial interest.”
Perhaps it is the sponsor who should have a duty under the Bill to take reasonable steps. By imposing a duty on one party to take reasonable steps in the academisation process, the Government seem to be granting a charter to the other party to make unreasonable demands at a late stage in the process. What estimate has the Minister made of the cost of legal fees incurred when lawyers make last-minute demands on behalf of sponsors? How does he see the Bill affecting that trend in the future?
We are now considering clauses 10 and 11. Clause 10 inserts a new duty on governing bodies and local authorities to facilitate the conversion of a school into an academy. Clause 11 inserts a new power to give directions to governing bodies and local authorities when progress is slow and direction is needed. Both the duty and the power are placed on governing bodies and local authorities because they are the responsible bodies that must take swift action to ensure an academy can open.
The hon. Gentleman’s amendments seek also to place that duty on any trustees of the school, the person or persons by whom any foundation governors are appointed and, in the case of a school with a religious character, the appropriate religious body—he has lifted the list of consultees from new section 5A(2) of the 2010 Act. The amendments will place duties on independent charitable bodies, such as dioceses or historical foundations, that do not have a direct relationship with the Secretary of State and are not accountable to Government. In this context, placing a direct duty on independent bodies would be disproportionate. Local authorities and governing bodies are in a different position as public bodies that are funded by the state. The Bill does, therefore, place them under a duty to facilitate conversion. Putting an additional duty on trusts, dioceses and charitable bodies would be unnecessary as their interests are already engaged through their stake in the school’s governing body, which will be under a duty to facilitate conversion. I hope that, with that explanation, the hon. Gentleman will withdraw the amendment.
Well, I did say that they were probing amendments. I have raised very real issues, which I hope the Minister will take some time to ponder. I do not know whether he—having received some in-flight refuelling—wishes to say anything further on it. I would have paused a bit longer if he did, but he does not. I beg to ask leave to withdraw the amendment.
This amendment requires direct parliamentary accountability for the use of the new power by the Secretary of State to direct bodies to carry out unspecified actions to facilitate the conversion of a school to an Academy.
Amendment 60, in clause 11, page 7, line 41, at end insert—
‘(4) The Secretary of State must provide reasonable compensation to a local authority where a direction under subsection (1) causes additional expenditure or the loss of capital assets.”
Amendment 57 seeks clarification about the meaning of “reasonable step.” Amendment 58 requires direct parliamentary accountability for the use of the new power by the Secretary of State to direct bodies to carry out unspecified actions to facilitate the conversion of a school to an academy. Amendment 60 requires the Secretary of State to pay for the cost to local government of her directions, and we have already heard how those costs for academy conversions can spiral—I understand, sometimes into six-figure sums.
Amendment 57 is about the loose phrase, “reasonable step”. What may seem reasonable to Ministers may not be quite so reasonable to someone else. The amendment seeks to put some limit on what can be required by saying that it should not require additional expenditure by a school or local authority.
Amendment 60 is designed to protect the financial position of the local authority by requiring the Secretary of State to meet revenue costs and any loss of capital assets in the process. Amendment 58 says that, when the Minister is making a specific direction, it should be done with transparency and with the possibility of parliamentary and public scrutiny. Those directions are likely to be about property, and significant amounts of money will be at stake. It is essential that there is a proper process for ensuring that public assets are protected. I am sure that the Public Accounts Committee and the National Audit Office will be interested to ensure that as well.
The amendments relate to clauses 10 and 11. Clause 10 inserts new section 5B into the Academies Act 2010, ensuring that, when a failing school has been issued with an academy order, the school’s governing body and local authority
“must take all reasonable steps to facilitate the conversion of the school into an Academy.”
Those steps include working with an identified sponsor.
If that does not happen, clause 11, which adds new section 5C to the Academies Act, allows the Secretary of State, via regional schools commissioners, to direct the governing body or local authority to take specified steps for the purpose of facilitating that conversion into an academy. The effect of the two clauses is to require local authorities and governing bodies to facilitate, proactively, the conversion of failing schools into academies, removing the roadblocks, which have sometimes delayed necessary improvements to underperforming schools. The measures will not place any additional burdens on the governing body and local authority but will ensure that they work efficiently to progress an academy conversion.
Amendment 57 seeks to ensure that a local authority or governing body does not incur additional costs as a result of the duty in the Bill to facilitate academy conversion. I recognise that there are costs to the schools involved in academy conversion. The Department contributes towards those costs by providing a grant. High-performing schools converting so that they benefit from the freedoms of academy status receive £25,000. Failing schools that become sponsored academies receive a higher start-up grant. The value of that grant depends on whether it is a primary or secondary school, and on the scale of change required. We currently expect the local authority or governing body to fund any additional costs not met by the grant. That will remain the case under the Bill.
Amendment 58 seeks to ensure that when a regional schools commissioner directs a governing body or local authority to take specified steps to facilitate conversion to an academy, such a direction is made by order. That would mean an order contained in a statutory instrument under section 181(1) of the Education and Inspections Act 2006, and subject to parliamentary scrutiny and the negative resolution procedure.
The amendment would introduce a more onerous process than other direction-making powers available to the Secretary of State—for example, the new power in clause 5 to direct the size and composition of an IEB or the terms of appointment of its members. It would only serve to add delays and complexity to a process that we are trying to streamline through the Bill’s measures.
If the regional schools commissioners gave a direction in relation to a conversion, it would be because a conversion had stalled and any necessary actions by the governing body or local authority were not being taken. For example, Shuttleworth College in Lancashire has been rated inadequate twice in six years, and not better than “requires improvement” in between. A suitable sponsor has been found, but the governing body has refused to pass a resolution to join the academy trust and continues to resist becoming a sponsored academy. If the regional schools commissioner had been able to direct the governing body to act, the school could be beginning to benefit from the academy trust’s support and be well on the way to improvement. Such decisions would not be taken lightly by the commissioners, who are already accountable to Parliament through the Secretary of State. Using a parliamentary procedure that is for secondary legislation and for closing motorway slip roads would be disproportionate.
Amendment 60 would require the Secretary of State to compensate a local authority for any additional costs or loss of capital assets when directed to take specified steps to facilitate conversion. Such a direction may include requiring the governing body or local authority to prepare a draft of a scheme under section 8 or paragraph 1 of schedule 1 to the Academies Act 2010 relating to the transfer of property.
Does my hon. Friend agree that the clause allows governing bodies and local authorities to be involved in the conversion process, which is key to the local connection and will only bolster the leadership and transformation to academy status?
My hon. Friend raises an important point. This is about requiring involvement where it seems to be being resisted. She is right to make that point.
It would be wrong to introduce a new requirement for the Secretary of State to compensate local authorities in these circumstances. The clauses do not require the local authority or school governing body to do anything more than would be required for an academy conversion. As a school converts to an academy, it will be granted a 125-year peppercorn lease to operate on its land. The land continues to be used for educational purposes, and the local authority retains the freehold. In view of that, I hope that the hon. Member for Cardiff West will feel reassured enough to withdraw his amendments.
I thank the Minister for that full explanation. As I indicated, these amendments were intended to probe what the Government meant by “reasonable steps” to facilitate conversion. Once again, the Minister used examples of successful academies, but I emphasise that things can go wrong from time to time. We hear news that the much-lauded Perry Beeches III academy—part of the Perry Beeches academy chain in Birmingham visited by the Prime Minister; there are copious photographs of that occasion—has been rated “inadequate” by Ofsted.
Superficial examples of superheads are all very well, but we need to look at the evidence. We all know how from time to time particular academy sponsors might superficially present an effective PR case for their school, so we need to be careful about requiring people to take reasonable steps when they might have reasonable concerns.
On the basis that we have registered our concern on this matter through the debate on these proposals, I beg to ask leave to withdraw the amendment.
With your permission, Mr Chope, I will speak to clauses 10 and 11, as the powers that they take are inextricably linked. The purpose of the two clauses is to tackle the long delays and blockages that governing bodies and local authorities can create in securing a sponsored academy solution. 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 unnecessarily.
Our experience is that governing bodies and local authorities have used delaying tactics, including long debate. One example of progress being unnecessarily delayed was when the City of Derby academy opened in place of the failing Sinfin community school in 2013. The school has come out of special measures and improved its GCSE results in the first year of its academy status. Ofsted confirmed that since becoming an academy, the quality of teaching has improved, pupils are progressing more rapidly and pupil behaviour and attendance has improved. Unfortunately, the turnaround was held up by a prolonged campaign that sought to delay the school becoming an academy.
Clause 10 will ensure that, where regional schools commissioners make an academy order in respect of a school that is eligible for intervention, the governing body of that school and the local authority must take all reasonable steps to facilitate the conversion of that school into an academy. Clause 10 will also ensure that where the regional schools commissioner tells a governing body and a local authority that they are minded to enter into academy arrangements with a specific sponsor in respect of that school, the governing body and the local authority must take all reasonable steps to facilitate the making of academy arrangements with that sponsor.
In the majority of cases, the effects of clause 10 should ensure that governing bodies and local authorities take the necessary action to ensure that a sponsored academy solution is in place quickly, but clause 11 is still necessary in the event that they do not. Where an academy order has been made in respect of a school that is eligible for intervention, clause 11 allows regional schools commissioners acting on behalf of the Secretary of State to direct the governing body or local authority to take specified steps for the purpose of facilitating the conversion of a failing school into an academy. Under section 8 of or part 1 of schedule 1 to the Academies Act 2010, a direction may in particular require the governing body or local authority to prepare a draft of a scheme relating to the transfer of property.
Clause 11 also allows regional schools commissioners to specify the period within which any steps for facilitating the conversion must be taken. Where a governing body or a local authority fails to act according to the duties in clause 10 and is not taking all reasonable steps to facilitate conversion, the regional schools commissioner can more specifically direct them to take certain steps by particular deadlines. It is crucial that regional schools commissioners have the powers in both clauses 10 and 11 to prevent delays in transforming failing and underperforming schools and to ensure that improvement is brought about as swiftly as possible.
I am also happy to accept that approach. Clauses 10 and 11 are intended to avoid delay in academisation, but when the Government are asked for evidence on the details of delays beyond one or two of their favourite anecdotes, Ministers can be surprisingly unforthcoming.
Recently, I asked a question of Ministers and received an all too typical non-answer in the form of a written answer from the Minister for Children and Families—I presume that the Minister for Schools is a bit too grand to answer written questions these days. The question, at column 2649, was:
“To ask the Secretary of State for Education, how many schools whose governing body had made an application for an Academy Order on or before 31 May 2012 had not been included in an Academy Agreement with her Department by 1 June 2015”— in other words, after three years.
I asked another question, at column 2650:
“To ask the Secretary of State for Education, how many schools which had an approved Academy Order on or before 31 May 2012 had not been included in an Academy Agreement with her Department by 1 June 2015.”
So, my questions covered the schools that had made an application and those that had had their academy order approved.
The answer that I received was as follows:
“We publish a list of open academies and academy projects in development at”— and then there was a Government web address. The answer continued:
“The list includes all schools that have applied to convert and those that have received an academy order. It is updated monthly…Since the Regional Schools Commissioners took up their positions in September 2014, the individual decisions to approve or decline an academy order have been published on their website” and there was another helpful hyperlink, before it continued:
“Schools may withdraw from the academy process at any stage prior to signing their funding agreement.”
I thought, perhaps naively, that my question would have been much easier to answer than it turned out to be for Ministers and their civil servants. If I asked you, Mr Chope, how many cups of tea you drank yesterday—I do not know whether you drink tea, but it is a hypothetical example—you might say three or five, or, if you could not remember exactly, you might say, “Somewhere between four and six.” I would not expect you to refer me to your website to try to find the answer, or even to someone else’s website, as I was referred in the second part of the answer to my question.
As my question to you would have required, Mr Chope, the question I asked Ministers simply required the correct number to be given as an answer. After digging through all these websites, doing the work of Ministers and civil servants for them, it was possible to find the answer, if one had to hand the 2012 list—which has long since been removed from the DFE website so is not readily available at the hyperlinks provided. The answers to the questions about how many schools had applied for an academy order but had yet to be converted, and how many already had an academy order but had yet to be converted, were 160 and 95 respectively.
Why has the Minister not properly analysed the real reasons for all these delays? They are not all caused by ideological individuals—otherwise known as parents. Such analysis might show that the real reason is not orchestrated campaigns but departmental bureaucracy, complications of ownership, private finance initiatives and, as I pointed out earlier, sponsors using expensive lawyers to get one over on the taxpayer, which is what is actually going on in many cases. Perhaps clauses 10 and 11 are further examples of legislation being made up on the hoof in order for the Government to be seen to be doing something tough, based on prejudices, rather than on the evidence that I was seeking to illicit from the Department through my written questions.
I would expect that, which is why I did not ask about those schools that are in the process of converting; I asked for those that had taken more than three years to get to this stage, and I ended up with those figures. I am not sure whether they are right—perhaps the Minister has the actual figures—but from digging around myself, I believe them to be 160 and 95 respectively. In the case of the second group, that is three years after an academy order has been granted. I put it to the Minister that that cannot be down to the reasons that he has given. That is why we are legislating here, for the most part.
The tone of these clauses extends the approach that we have seen throughout the Bill. The Government are determined to have their way and will brook no alternative view. They have removed all opportunity to protest or appeal against decisions, and now the Secretary of State wants to take the power to enforce active collaboration with the decisions that people were not consulted about. She clearly has so little confidence in the strength of her arguments that she feels it is necessary to require those who disagree with her to act as if they do agree with her. That is what this clause means.
No one wants lengthy and unnecessary delays over the future status of a school—it does nobody any good—but Ministers need to understand that their refusal to listen to alternatives and their insistence on having their own way at all times through profoundly undemocratic processes will inevitably provoke a reaction. People do not take well to being bullied, which is what these clauses do.
That the Government think these clauses are necessary is a sort of confession of failure, because they know deep down that they are not convincing people sufficiently with their arguments. The evidence is not on their side, but they will plough on regardless, shut their ears to other people’s views, and, through clauses such as these, go beyond that to enforce their wishes and turn school governors into ventriloquists’ dummies banned from voicing their concerns and forced not only to concede to actions that they disagree with but to actively promote them.
In effect, the Government are legislating so that the governors’ duty of care to the pupils at their school is replaced by a duty to implement and promote the policy of the state, even when they sincerely believe it to be against the interests of the pupils who are under their duty of care. So it is hardly surprising that many governors wonder why they bother, given the Government’s open contempt for their efforts.
This Government claim to have been converted to devolution. As I pointed out earlier, there is little evidence of that in the Bill. We see a combined authority approach as a much better way of trying to bring about devolution than that outlined by the Minister.
Clause 11 continues the approach of clause 10. The Local Government Association said that the Bill contradicted the rhetoric of the Secretary of State, who spoke at the Sunday Times festival of education at Wellington College on 18 June. She said:
“It’s not the fact of being a free school or an academy that leads to this excellence. Rather, it's what being an academy or a free school stands for. Freeing up schools and governors to make decisions that are right for their pupils.”
By giving the Secretary of State powers to require governors to take specified actions, the clause removes the freedoms of school governors to make decisions that are, as the Secretary of State said, “right for their pupils”.
Does the hon. Gentleman not consider that if a school has reached such a condition that an academy order is being taken forward, governance will have been one of the elements that was failing or required intervention, so it would not be responsible to allow governors a free rein, and this includes them in the participation.
No one is suggesting that anyone should be given a free rein, to use the hon. Lady’s expression, and neither is anyone suggesting that it might not be appropriate in certain circumstances for an interim executive board or an academy sponsor to have to step in to run the school, but the clause goes way beyond that contention.
My hon. Friend is right. Indeed, every academy that is rated “inadequate” is the responsibility of the Secretary of State, and is now the responsibility of the regional schools commissioners. Their failure has to be accounted for according to the logic of the Government’s approach.
I simply ask, given the rhetoric of the Secretary of State, how on earth the Schools Minister can square such rhetoric with the reality of the clause. Is it not the case that the freeing up of governors mentioned in the Secretary of State’s speech was just empty rhetoric? Removing their freedom is the reality.
I sense that the hon. Gentleman simply does not have the same sense of urgency to deal with underperformance as we on the Government Benches have. I accept that he wants to improve schools and that he accepts the academy programme as a good programme in certain circumstances, but given the accumulation of his amendments and the points that he made in his speech, I sense that he does not have the impatience and sense of urgency that we have to improve the education of children in schools that are underperforming. That is where we will have to agree to differ.
I will not agree to differ in this sense—I am impatient, but I am also impatient with reckless decision making that can lead to unsuitable academy sponsors being selected, as we have already seen. That is why we need good-quality decision making. We will agree to disagree on many things during the course of the Bill, but I am glad that he acknowledges that we can both agree that we want to see schools improve rapidly.
The policy that the hon. Gentleman proposed of some form of combined local authority approach will not deliver the sense urgent improvement that we absolutely have to have in our schools.
May I also address the hon. Gentleman’s point about the numbers? I will ask my officials to check his figures to see if they are correct and to get to the bottom of what they represent.
Superficially, it appears that some of those schools that are taking more than three years to go from an academy order to a funding agreement are actually schools that have voluntarily converted. They might have had the academy order, but have not finished—perhaps there are concerns about land or all kinds of other issues. I do not know. We will get to the bottom of that. To the extent that those are underperforming schools where there is some resistance, that provides an argument for us to take the powers to push the process forward faster.
Good. On the face of it, however, it sounds like an argument in favour of the measures that we are taking in the Bill to improve the speed with which schools are moved from an academy order to a funding agreement. That is what, in particular, the measures in clauses 10 and 11 seek to do by requiring local authorities to get their act together and to provide all the required information about pensions, land transfers and so on. For that reason, I hope that the hon. Gentleman will support clauses 10 and 11 stand part.