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Academies Bill [HL]

Volume 719: debated on Monday 21 June 2010

Committee (1st Day) (continued)

Amendment 2

Moved by

2: Clause 1, page 1, line 3, leave out “any person” and insert “the governing body of a school”

We turn now to the issue of free schools. As I said a moment ago, I am very grateful to the Minister for making the Statement repeating the Answer given to the Urgent Question asked in the other place, and for taking such a comprehensive set of questions. However, the Statement has generated more questions than answers. I am sure that as we go on in Committee we will learn a lot more.

Even the disinterested passer-by cannot help but notice that free schools are a flagship policy of the coalition Government—or at least of the Conservative part of the coalition Government. The Prime Minister and the Secretary of State were clearly delighted to be photographed during the election campaign with parents celebrating their promise of a new school on demand. It was great campaigning, I am sure that noble Lords will agree. A whole page of the Conservative manifesto was devoted to a case study of the Swedish education system, the model for the Government’s free school proposals. Actually, when I looked at it, most of the page was taken up by photographs—very nice too—but at least nominally there was a page on the subject.

The Chancellor cited the reform as key to the Government’s plans to close the deficit, as it would see free schools use money more efficiently. The Secretary of State says that he has seen the future in Sweden and it works. The Government seem to want a great deal of attention focused on this policy, but considerably less scrutiny about the practicalities of it. We may be changing that today.

Nowhere, however, in the pronouncements of the Secretary of State in connection with the Swedish-style free school reform, of which we have heard so much, has the Academies Bill been mentioned—until today. The Bill was announced under the headline, “Legislation to give more schools opportunity to become academies”. The Department for Education website carries a document outlining the purpose of the Bill. It states:

“The Academies Bill will enable more schools to become Academies and give them the freedoms and flexibilities they need to continue to drive up standards”.

The document makes no mention whatever of new providers entering the school system. The Explanatory Notes to Clause 1 state:

“This clause replaces similar existing provisions in section 482 of the EA 1996. It enables the Secretary of State to make ‘Academy arrangements’ with another person, to establish and run an Academy. That person will be funded by the Secretary of State further to either a contractual agreement (an ‘Academy agreement’) or, by new subsection (2)(b), through grant funding under section 14 of the Education Act 2002”.

There is no mention of new providers here either, merely an oblique reference to previous legislation and “other persons”.

As the Minister pointed out just now during questions on the Statement, the clauses allow the Secretary of State to open a school, or to authorise anyone whom he sees fit to open a school, with almost no safeguards or undertakings. As the Secretary of State and the Minister know very well, that wholesale copy of the Swedish school model will not necessarily drive up standards in our schools. If the Minister has evidence that that is not the case, I would be very grateful to hear about it. I would also be interested to know where in the impact assessment evidence of the value of the Swedish model is set out.

When Sweden tried the reforms on which this proposal is based, standards fell sharply. The new schools founded under Sweden's reforms educate children of educated parents to a greater extent than those from educationally disadvantaged backgrounds. They have opened in rented office blocks and former commercial properties. That is not just according to the critics of the scheme—that account came from the Swedish National Agency for Education, their equivalent of Ofsted.

On the financial side, creating new schools and deliberately generating surplus places—as you will have to do to make them work—costs money. Without additional funding being promised, that will take money from existing schools. We have heard about a very small amount of money, which may suggest that the scheme may be more modest than the election campaigning suggested. There is also the question of capital. We will not see great new schools coming into being without tackling the issues mentioned by the noble Lord, Lord Greaves.

It is extraordinary that such a major change in approach to schooling in this country should be made in this way, where private companies will be invited to manage schools on behalf of groups of parents—although the message has now moved slightly to include groups of teachers—with no necessary regard to the well-being of children in nearby schools.

At the start of Committee, we had an interesting debate about the name. Given all the PR, positioning and developing of the free school brand, it would be very helpful if we could be consistent about names here. If free schools are academies, let us call them academies, as noble Lords argued persuasively earlier.

I am sure that we would all agree that there is no such thing as a free lunch or a free school. According to what I can glean from the Bill, the Explanatory Notes and so on, a free school is actually an academy without an academy agreement, so it is an exceptional academy. I would be grateful if the Minister could explain the intentions for free schools and the legislative process around the development of this flagship government policy. I beg to move.

My Lords, Amendment 3 in this group is tabled in my name. It is similar to the amendment that the noble Baroness, Lady Morgan, has just moved. I tabled this amendment because I have read the Bill several times—more times than is good for me—and I cannot work out whether the Government intend to include free schools within this legislation, and this is meant to be the legislation that will apply to free schools, or whether it is just about converting existing schools. My confusion, which is similar to that of the noble Baroness, arises because all the Government’s statements about the Bill relate to converting existing schools into this new kind of academy. That is how the Bill was promoted. I read the Second Reading debate, and that was largely what it was about. So I was confused as to whether Clause 1, in particular subsections (1) and (2), could apply to free schools. The Bill states:

“The Secretary of State may enter into Academy arrangements with any person”.

That seemed to me to provide an ability to include any group of people who put themselves forward to set up a so-called free school.

Then there was the announcement at the weekend and the Statement that we have just had, and it now appears that the Bill includes free schools and that they will be set up within the terms of the Bill, if and when it becomes law. That is the real reason I put this amendment down for clarification. Will the Minister confirm that that is the case? Or do the Government think that free schools can be set up under existing legislation? In that case, they have a choice. If free schools are included in the Bill, a great deal of unanticipated extra discussion and debate is required, particularly in Committee.

I thank the Government and Ministers in both Houses for the amount of discussion they have been prepared to enter into with all Members of the House, and in particular with the Liberal Democrats, concerning the Bill. However, going over the notes I have made of meetings, I see that free schools have hardly been mentioned. The meetings have all been about conversions. Suddenly this weekend, the terms of the debate on the Bill seemed to change substantially. At this stage I do not want to enter into detailed debate about free schools. However, if there are to be free schools, the legislation and rules under which they are set up will need to be laid down at least as clearly as the rules for conversions are set out in the Bill. Given the quantity and detail of the amendments that have been tabled, we may feel that the detailed rules and regulations for conversions are insufficiently set out in the Bill and need improvement.

The system for setting up free schools does not exist in the Bill, as far as I can see, unless there is stuff that I have read without understanding what it means. This amendment is a means of getting from the Minister some clarification of these matters so that, in the rest of this debate in Committee and when the Bill goes back to the House, we can understand exactly what we are talking about. It may be that amendments that noble Lords might want to see in the Bill will be different according to the answer that the Minister gives. The basic questions are: do free schools need new legislation; can they be set up under old legislation so that the Bill does not apply to them; and, is the Bill necessary and fundamental to the setting up of free schools?

I hope the Minister will be able to confirm that entirely new schools can be set up, and indeed are set up at the moment, as academies. So, to the extent that that is true, free schools can be set up at the moment under existing academy legislation. I warmly welcome the suggestion made by my noble friend Lady Morgan that free schools should be called academies. I hope that the Minister is able to accept that suggestion, which my noble friend makes with great generosity of spirit, to make clear that we have a much more uniform nomenclature available. I am very keen to see all categories of schools that have the legal characteristics of academies called academies.

I shall speak to Amendments 13 and 76, which are tabled in my name. When we debated the Bill at Second Reading, there was widespread concern throughout the House that academies should have obligations to meet the needs of pupils with special educational needs that are no less rigorous than those which apply to maintained schools. The Minister was very clear that he was fully committed to this, and I am grateful to him for the trouble he has taken in meeting Peers with these concerns and also in writing to provide assurance that that is what the Bill achieves. However, there are still areas that remain unclear, where the commitment could do with being spelled out more fully or where gaps in the obligations to which academies are subject need to be plugged. These amendments are directed at remedying these deficiencies.

Amendment 13 is a probing amendment with two purposes: first, to ascertain whether academies receiving academy financial assistance will be required to have funding agreements in place; and, secondly, to ascertain whether meeting the needs of children with special educational needs and disabilities will be included as a standard requirement within arrangements for academy financial assistance, just as it currently is in funding agreements.

Currently, academies are principally accountable through and governed by funding agreements signed with the Secretary of State. Clause 1(2)(b) introduces a new form of funding for academies—

“arrangements for academy financial assistance”.

These are not found in the original academies legislation. Arrangements for academy financial assistance are a form of direct funding from the Secretary of State granted through powers conferred by Section 14 of the Education Act 2002. Arrangements for academy financial assistance are an alternative to funding through an academy agreement so that it appears possible that, where arrangements for academy financial assistance are put in place, an academy may not be required to have a funding agreement.

While it is possible to have reservations regarding the scope and effectiveness of funding agreements as accountability mechanisms, there has none the less been clarity in funding agreements signed after 2007 that academies should have regard to the SEN code of practice and use their best endeavours to ensure that special educational needs are met. There are concerns that this new form of academy funding—arrangements for academy financial assistance—will bypass the safeguards contained in funding agreements in relation to SEN provision. This amendment gives the Minister an opportunity to make the position clear and to reassure us that academies receiving academy financial assistance will be required to have funding agreements, and that meeting the needs of children with SEN and disabilities will be included as a standard requirement within arrangements for academy financial assistance.

Amendment 76 seeks to ensure that academy funding agreements are comprehensive in their coverage of the requirements that are laid on maintained schools in relation to pupils with special educational needs in Part IV of the Education Act 1996. I recognise that the intention behind the academies programme is not to weaken the SEN legal framework. The Government have stated that one of the broad principles on which they have approached the academies programme is that there will be no change to, or weakening of, the requirements governing SEN provision.

In response to questions asked at Second Reading about the safeguards for children with SEN in funding agreements, the Minister made it clear that the provisions of these funding agreements mirror the legislative requirements on maintained schools. Since 2007, model funding agreements, which govern academies’ actions, have transposed measures from Part IV of the Education Act 1996 and made it clear that academies should have regard to the SEN code of practice. However, a contractual arrangement is one thing; a law is quite another. Contractual arrangements do not provide anything like the assurance provided by legislation. Even if we accept that funding agreements offer parents the same pathways to remedy as the law, which I question—I will have an opportunity to question this further when later amendments come up for discussion on Wednesday—existing funding agreements still do not refer to certain important aspects of SEN law that it is important not to lose.

It is true that existing funding agreements mirror some of the duties in Part IV of the Education Act 1996, but concerns remain that other aspects of Part IV are not covered. For example, no existing academies have the same duties as maintained schools under Section 317A of the Education Act 1996 to inform a child’s parents if they consider that child to have special educational needs, or to admit a pupil with a statement when both the parents and the local authority wish the child to attend that school as maintained schools are required to do by Section 324 of the Education Act 1996.

Amendment 76 therefore seeks further assurance that the academies programme will not result in a weakening of the requirements that govern SEN provision in schools and that all funding agreements will cover all the requirements of Part IV of the Education Act 1996. In particular, it would require academy agreements to contain provisions that set out the responsibilities of academies in meeting the needs of pupils with special educational needs or disabilities. In discharging these responsibilities, an academy should co-operate with the LEA in making provision for pupils with special educational needs or disabilities. An academy funding agreement should make provision to ensure that: academies use their best endeavours to ensure that an LEA can discharge its responsibilities in making arrangements for the provision of education for a pupil with a statement of SEN; academies have regard to the SEN code of practice; academies act as if they were a maintained school for the purposes of Part IV of the Education Act 1996; SEN co-ordinators are qualified teachers; and academies make arrangements to ensure that an independent appeals process is available to parents of pupils with SEN or a disability.

I hope very much that the Minister will be able to accept this provision. If he did so, that would put beyond doubt his desire to see that funding agreements are fully comprehensive in transposing the requirements of special educational legislation in Part IV of the Education Act 1996.

My Lords, I very much support the amendments in the name of my noble friend Lord Low as I follow his interest in special educational needs. I have tabled Amendment 24 in this group, and I intend throughout Committee to introduce amendments and to speak about a particular form of special educational needs: those of children who have grown up in severely disadvantaged and chaotic families and who so often end up being statemented with emotional and behavioural difficulties.

In that context, I ask who will govern these new academies. Who will make the decisions on the ground? I fully acknowledge that parents sponsoring and running a school may be a good idea, but I am not convinced that a whole or even a majority of the governing body composed of parents of children at the school is at all desirable. My own modest experience in the independent sector has certainly indicated that short-termism tends to dominate decisions that are taken when there are too many parents with children at a school. Parent governors will obviously want the best for their children and are right to do so. Indeed, we want the stimulus of parents who push to get the best for their child, but there is a real danger that, if we get the governance of academies wrong, they will end up with the same fate that has unfortunately befallen so many of the admirable Sure Start centres which the previous Government introduced. Money was put to serving the community, the community was encouraged to consider how it wanted the money to be spent and the money was then spent in that way. What has tended to happen is that the brighter, pushier and more intelligent parents have jumped on the bandwagon and got the kind of input and outcomes that they wanted, and the parents with disadvantaged children who have no experience of addressing leadership or influencing events—the hard-to-reach parents—have gone to the bottom of the pile and the funding that was intended to go to them, if it is not wasted, at least does not reach them.

What is the Government’s intention for governance? I refer to all the different kinds of school: free schools, parent-sponsored academies or academies sponsored by existing schools.

My Lords, I am very pleased that the noble Lord, Lord Low, has set out the case for reconsidering special educational needs, as this is a very important and complex issue. I am also pleased that the noble Lord, Lord Northbourne, mentioned governance, and that my noble friend Lady Morgan talked about standards, which are key. I understand that some academies have been allowed to opt out of publishing data on pupils’ achievement, which we will no doubt talk about later.

Amendments 2 and 3, in the names of my noble friend Lady Morgan and the noble Lord, Lord Greaves, respectively, deal with consulting governors. I am a governor of a primary school in Wandsworth, and I think that school governors are important people in all this. I know that some later amendments deal with consultation, but for now I want to talk about governing bodies.

I understand that academies are required to have only one elected parent member on their governing body, while the existing principle is that a third of governing bodies should be parents. Parent governors are crucial. I am a governor at a school in a deprived area of Wandsworth, which attracts parent governors who are very helpful and useful to the school. This is particularly important in early years institutions if they are to become academies. Parents on those bodies will be essential. If parents are not involved in the early years, the children and the school suffer. I should like to ask the Minister about consultation with governing bodies. How is the future governance of schools foreseen?

I apologise for the misprint in my Amendment 33. For the word “roles” noble Lords should read “rules” and they will get a greater, if not absolute, idea of the sense of it. I am concerned about how the governing bodies of these academies will be dealt with when they go wrong. They can get into a mess from time to time when they are captured by strong individuals with very particular ideas. They can become at odds with parents and heads, and can contribute to poor performance in the school. I understand what happens under current academies with sponsors. But in an academy without a sponsor, what process will be gone through to set the governing body back on the right path? Who complains to whom? Who reaches a judgment as to what is happening? Who takes action under what powers?

What general powers will parents have to set things right if they see things going wrong? I do not think that there are any contractual arrangements with parents. So, if a school is failing to provide education, what is the route for the parent to enforce the right to education for their child? Finally, at Second Reading, I asked whether we might be circulated with a model funding agreement. I have not seen that yet and I am keen to do so while we are discussing these matters.

My Lords, the debate so far has been extremely interesting. It started with a clear indication that we will go down the academy route for all schools. I supported that direction very strongly before the break. To add free schools, when clearly they all fall within the same family, does not make any sense. I was slightly surprised at the amendment which the noble Lord, Lord Greaves, addressed, to replace “person” with “governing body”. No noble Lord has said one word about the governing body and its role.

I must declare an interest as president of the National Governors Association. Therefore, all these areas interest me quite a bit. Given all that and the rather confusing and conflicting view that noble Lords around the Chamber seem to have about whether governors and parent governors are a good or a bad thing, it would be extremely helpful if the Minister—to whom I also add my thanks because he gave up a lot of time before we even began debating this Bill—could indicate how important he thinks that the role of the governing body is. It will have a hugely important role in seeing that these new academies—however many of them there are—come to the conclusion that I think many of us would see as an important step in British education.

My Lords, I support the amendments in my name and that of my noble friend Lord Low. Rightly, they were narrowly focused. At Second Reading, he said:

“Academies are independent schools that are funded directly by the Secretary of State and are accountable mainly through the funding agreement, rather than”,—[Official Report, 7/6/10; col. 514.]

through educational legislation. I am interested in accountability. I strongly support Amendment 13 because it requires that any other—to me, rather mysterious—mode of supplying financial assistance to academies should be as equally open as the contracts that are agreements between the applicant and the Government. I entirely endorse the desire that the noble Lord, Lord Lucas, expressed to see a copy of one of these model agreements.

The issue is about openness and accountability of how much money is being handed over—it will be a considerable amount—and exactly what the academy is committed to providing with that money. This is where I come to my noble friend’s main interest; namely, to seek an assurance that the money must be spent on provision for children with special educational needs. I think that we will come to more detail on that later. I share his feelings that the local authority must retain a good deal of responsibility for the provision of educational facilities for children with special needs, especially in very difficult cases of rare disabilities or multiple disabilities where individual academies could not afford to spend the money required.

There is a good deal of unclarity regarding special educational needs. Parents will be very much confused—perhaps more so if they read today’s Hansard than they were before. Amendment 13 would clarify the position with regard to the accountability of an academy, whatever way it receives its money from the Secretary of State.

My Lords, on this group of amendments, the issue about whether these free schools will be academies could be a trifle academic if the Government are saying that the point of the future trajectory is that all schools should at least have the opportunity to be academies. We need to see this debate within that context.

Much more seriously, I endorse the recommendations that the security of those with special educational needs be affirmed in the Bill. The noble Lord, Lord Low, referred to the avoidance of doubt, and bishops are always up for the avoidance of doubt. There are some issues where it is too risky to leave matters simply to good will or mutual understanding, and special educational needs is one of them. We need to ask the Minister if he will look at ways in which that dimension of academy life can be secured clearly in the Bill.

My third point is to do with governance—not with who can be a governor, but with the purpose of school governors in this brave new world. Many of us have lived through various recensions of governance. I go back to when I was first ordained in the early 1970s and I was a governor of a school. It seemed that the main purpose of the governors was to meet quarterly, hear the head teacher tell us how good the school was, and to pat the head teacher on the head saying, “Jolly good. Keep it up”. It was not long before we saw the development of teacher governors and parent governors. Governing bodies became representative bodies that articulated the range of interests of those with any connection with the school. The role of governors changed quite significantly. Then the most recent Bill of the last Government, just before the election, looked dangerously as though it was tipping towards having governors acting as the Government’s narks. There were going to be requirements for governors to be able to spill the beans and blow the whistle when they thought the head teacher or someone else was not quite up to it. I am sure it will be said that that was not the intention, but that was how it looked. Certainly there was a shift going on in our understanding of governance.

What I ask the Minister is this. Before we even start nailing down categories of people who should be governors, what will we be asking them to do? What will be the role of governors in this new world of academies that is now emerging on the back of the primary wave? I cannot make a decision about the issue of who until I have some understanding of what it is that the governance of academies will entail. What will be the function of the governors? What gifts and qualities will be required of them? We will then be able to answer the question of who might be the most competent people to fulfil that vital role.

My Lords, I support, first, the amendments tabled by the noble Lord, Lord Low. It is important that special needs are recognised. I also support the amendment of the noble Lord, Lord Northbourne. I have been a governor of a girls’ school and am now a governor of a boys’ school. As a governor of the school to which my daughter went, I was not actually asked to take on the role until she had left. That seems to be the ideal situation because you then have a parent with a real interest in the school but without the rather special interest which is local and time-limited. To have a predominance of parent governors while their own children are in the school would be a retrograde step, so I strongly support the amendment of the noble Lord, Lord Northbourne.

My Lords, I also support my noble friend Lord Northbourne’s amendment. I emphasise that there is much to do. Some children need smaller schools and special teachers to work with them, but others do not, even though they may face serious challenges at home. Good support can be offered in schools to include these children to the benefit of all. I give one example: the charity Voluntary Reading Help, which works in over 1,000 schools. It recruits volunteers to work for one or two lunch hours a week with particularly difficult or challenging children. I have seen for myself in a primary school nearby how the volunteer will sit down and read with a child for half an hour and then play a little game. The child chooses the book and they enjoy their time together. A significant number of these volunteers are men, which is particularly valuable given that we have so many young boys growing up without fathers. These are important relationships that can be built up over the course of a year, which is the minimum commitment. This is the sort of thing that helps to include children who might otherwise be challenging. It is important to consider who should make up the governing body and what its function is. It should take a strategic view and be able to adopt sensible approaches like the one I have outlined.

I was encouraged when Nick Clegg, the Deputy Prime Minister, said last week that he intended to recruit more men into early years childcare. I hope that he will also look at primary schools and how initiatives like Voluntary Reading Help might be developed. The charity is keen to expand in order to be able to help more children.

My Lords, I follow directly on what the noble Earl, Lord Listowel, has said, as well as what was said by the noble Baroness, Lady Warnock. The House has been concerned about the position of children with special educational needs. It is one of the areas where a good governing body can make it very clear indeed that the school must make provision for children in this group. Indeed, the force of governing bodies has been one of the pressures that has encouraged the move towards children being educated at least partly in mainstream schools if they possibly can be. Not the least of this has taken place in primary schools, where the governing body is often a crucial factor in ensuring that these youngsters are given the education they need and deserve.

I do not want to detain the Committee for long. First, I ask the Minister whether more assurances can be given on the position of children with special educational needs, about which we have learnt a great deal more in the past 10 years. Far more children are now helped in schools, in some cases through one-to-one assistance, to overcome the obstacles they encountered as very young children so that they often catch up with their cohort. In the long term their special educational needs are not a handicap to them. We would like to associate ourselves closely with what has been said by the noble Lord, Lord Low, and of course by the noble Baroness, Lady Warnock.

I want to make one other point quite strongly. It was the former Secretary of State for Education who brought in the requirement that governing bodies had to include representatives of parents, teachers and non-teaching staff. Will the Government consider very carefully whether we should not consider, as is implied in the amendment of the noble Lord, Lord Lucas, widening somewhat the requirements in the Bill so that governing bodies are rather more representative than the single parent governor that is presently required for the academies? In the country as a whole, there are some 300,000 governors, or at least vacancies for governors. This seems to be a perfect example of what the Prime Minister meant when he talked about the importance of the big society, because these are men and women who volunteer their time and energy and make a fantastic commitment to ensuring that their schools are as good as they can be. I have seen it over and again, particularly in respect of smaller primary schools through what I should declare as an interest in my capacity as the chairman of the judges of the Teaching Awards. Among others, we give awards directly to the governors of schools. It has been striking to see governors from often deprived parts of the country committing themselves deeply to getting their communities involved in their school. It would be a tragedy to see that go.

With regard to special educational needs, can the Minister say a little more to ensure that such children get the care and attention they need? Given the large number of academies that are to be created, I also ask him to consider again whether we should not ensure, at the very least, representation of parents—I share the view that it should not be a majority—and staff, including non-teaching staff, on the governing body in order, to put it bluntly, to ensure that those non-teaching staff members are strongly committed to the successful outcome of the school. That is a very important part of making education responsible and responsive to the community and the country as a whole.

My Lords, I am sure that none of us wishes to extend the debate any longer, but I feel strongly that the support being shown for the amendment tabled by the noble Lord, Lord Northbourne, may be misplaced or perhaps misunderstood. I say that because I am disappointed that we should in any sense offer support to the idea that a governing body with a majority of parents is not a delightful and wonderful thing. I hope that the free schools will include those started by groups of parents because surely parents more than anyone else care about the welfare of their children and know what they want for them.

The commitment that you get from parents involved in the running of a school where their own children are present is one of the solid gold threads of education in this country. Many years ago I was involved in the early days of the pre-school playgroup movement. This was established entirely by mothers for their children and it was absolutely wonderful. The way in which the mothers organised themselves and their children—they wanted the absolute best playgroups and so set up training courses for themselves—is exactly what the big society is about. I hope that some of the free schools will generate that excitement again.

The idea that it is only sharp-elbowed, middle class parents who have this kind of excitement is extraordinary. Many of the pre-school playgroups were—

I am grateful to the noble Lord for that because, certainly, many of the parents came from different backgrounds. I have seen pre-school playgroups on council estates organised by single mothers and so on which were inspiring. So perhaps we should reconsider the idea that a governing body composed of a majority of parents is not necessarily a good thing.

My Lords, as the grandfather of a splendid little lad with Down’s Syndrome who is nine years’ old, perhaps I may say that the massive support that my noble friend Lord Low has received from around the Committee is music to my ears. I should like to add my support to the amendments.

My Lords, I hope that I am not going to spoil the party by referring to the first two or three amendments in this odd group. The debate seems to have become about the composition of school governing bodies which, as far as I can see, is the subject of a later group of amendments. Never mind; we soldier on.

The first two amendments in the group seek to amend the words at the start of the Bill:

“The Secretary of State may enter into Academy arrangements with any person”.

“Any person” seems an unambitious expression and one wonders why it should not, for example, say, “Any charity”. I understood the Minister to say earlier without equivocation—this is how I read the Bill—that only a charity can be “the other party” for the purposes of academy arrangements. If we were to get technical—which is what we are supposed to do in this House—we would consider the Interpretation Act, which states, I think I am right in saying, that “any person” is any corporate entity or any individual person. It does not, for example, cover unincorporated trusts—and a great many charities are just that.

If I had been kinder I would have raised these issues with the Minister before the debate, so I do not expect him to answer directly. However, I strongly recommend that the phrase “any charity” should be substituted for “any person”. That would be happier, clearer and avoid the technical argument I have touched on.

Following on from the previous speaker, I should like further clarification on the rules concerning the new schools. It is desirable that the Bill should encompass all three types of new schools. This would, first, allow the best schools to become better by freeing them up; secondly, tackle the failing schools through the academy orders in Clause 4; and, thirdly, make provision for the new schools so that they, too, can become academies. It would be tidy if those three elements could be within the Bill.

We do not need to be too anxious about the burden that this will place upon the Government. Taking things in context, the brief on the Bill pack prepared by the House of Commons includes two or three helpful sections on new schools. It states that currently 19 per cent of the 3,200 secondary schools are judged to be outstanding and will qualify for the fast track. So that is potentially 600 schools out of 20,000. At the other end, depending on how you define inadequate Ofsted reports for longer than a year, there are about 100 failing schools. So, added together, that makes approximately 700 schools out of 20,000.

In the document Raising the Bar; Narrowing the Gap, which was the discussion Green Paper of the Government when they were in opposition, it was anticipated that the total number of new schools—roughly about 300 to 400—would be equivalent to about 220,000 places. I mention this for two reasons. First, all of the proposed changes might touch upon, potentially, 5 per cent of the total cohort of schools within the country. Therefore, the sense that this will send shockwaves through the entire system is unfounded and it is perhaps unfair to concern people about that. Secondly, the catchment areas of the new schools—

The terminology is getting to us all. I do mean that. I come from an inner city urban area on Tyneside and it happened quite regularly that, where you had a failing school in a suburban area, dissatisfied parents who could afford to, or opted to, would take over an old large Victorian terraced house and its grounds—we have all seen them—and set up a new independent fee-paying school. The parents who could afford to opt out of the system would then pay fees for their children to go to that school. This movement still exists and is happening within the private sector. I cannot understand how anyone who has a passion for narrowing the gap and giving greater opportunity could possibly object to it. We should do all of these things in inner city areas and make them free and available to everyone. That would be entirely laudable.

I wish to make two other brief points, the first of which relates to catchment areas. If there is going to be a greater number of schools, broadening catchment areas would be a good thing. When the city technology colleges were established, they covered not only one entire local education authority area but often encompassed two or three. In other words, if the parents were prepared to undertake the duty of getting their child to school and it was not going to damage the child’s education, it was deemed acceptable for the child to attend there. Where there is greater choice the catchment areas need to be broadened. The noble Baroness, Lady Morgan, rightly made the point that narrow catchment areas could have too severe an effect on neighbouring schools.

The final point on which I seek clarification from the Minister concerns the properties that could be used. There are many buildings in inner city areas—including, many educational buildings—under the control of local authorities. Indeed, where they have a surplus of places they are paying additional money for them. Does my noble friend agree that local authorities should look at their existing stock of prepared educational establishments, embrace this change and, where there is a surplus, hand over existing buildings to a new school provider? That would give the authority an additional income and would mean that the provider was not forced into premises that might not be suitable.

My Lords, it has been wide-ranging debate. As the noble Lord, Lord Phillips, pointed out, we have in some ways already got on to some of the issues that we will discuss in later groups of amendments. We can pursue them in greater detail then. Given how wide-ranging the debate has been, it would perhaps be helpful if I briefly restated the amendments and their purpose.

Amendments 2 and 3 would mean that academy arrangements could be made only with the governing body of an existing school rather than any other group. They are linked in this group to Amendment 24, which would mean that, for future academies, the academy proprietor would have to ensure that its governing body was not controlled by a majority of parents of pupils at the academy—which was the point made by the noble Lord, Lord Northbourne.

Amendment 13 seeks to ensure that the SEN annex of an academy agreement, which sets out the school’s detailed obligations in relation to pupils with SEN, would apply also to the arrangements for academy financial assistance. Amendment 33 seeks to prescribe in the Bill that the academy agreement includes details of the roles, composition and continuance of the governing body. Amendment 76 seeks to ensure that academy funding agreements include additional provisions on SEN, including a requirement to comply with special educational needs legislation and regulations as if it were a maintained school.

Perhaps I may start with Amendments 2 and 3. The Government want to make it easier for teachers, charities, educational groups and groups of parents to start new academies. As the 2005 White Paper stated:

“We believe parents should have greater power to drive the new system: it should be easier for them to replace the leadership or set up new schools where they are dissatisfied with existing schools”.

We debated that earlier. I do not feel that I need to go through much of it again.

I should make it clear to the noble Baroness, Lady Morgan—I think that my noble friend Lord Greaves also raised the point—that a free school could be regulated either through a funding agreement or a grant under Section 14 of the 2002 Act. In both cases, similar requirements will be placed on free schools as are placed on academies which convert from a maintained school. The only difference would be more flexibility in relation to the length of the funding period, a point that I made in our earlier debate on the Urgent Question. The more flexible arrangement would be used mainly in cases where new providers did not have a previous track record.

It would be helpful if the Minister set out in greater detail in writing what he has just said. We received a letter from the Secretary of State today—I am scrambling around to find it among my papers—stating not only what he has just said but also that academies funded through grant would have the conditions of their grant outlined in a letter. It states that the provisions would be in line with those in the funding agreement, as the Minister has just said. However, there is anxiety that, for issues around SEN, vulnerable children and all the areas set out in the funding agreement, the provisions might well be “in line with” but not the same. The Minister has just made a strong statement. It would be helpful to have that more clearly set out. My noble friend Lord Adonis said that the Secretary of State can already fund schools in this manner under the 2002 Act. If that is the case, and all the instruments exist, why do we need this additional route? If all the instruments exist, are we not just confusing matters? Around the Chamber, we are starting to understand the importance of the academy agreement. If we introduce another way of doing things, will it not confuse things further? Perhaps a letter would be helpful.

I am very happy of course to write further and set out what the noble Baroness seeks, because it is absolutely our intention that the two forms of funding should be on a completely equal footing. I recognise that many Members of this Committee want as much reassurance as they can have on that. If I can help in making it clearer, I will be delighted to do so.

Amendment 13, tabled by the noble Lord, Lord Low, seeks to ensure that the SEN annex of an academy agreement, which sets out the school’s detailed obligations in relation to pupils with SEN, would apply also to the arrangements for academy financial assistance. In a way, that is a variant of the point made by the noble Baroness, Lady Morgan. The amendment is unnecessary, because academies whose arrangements take the form of an academy agreement and those whose arrangements are for financial assistance will both be under the same obligations in relation to special educational needs. I shall pick up again on special educational needs in connection with Amendment 76, although I know that a later group of amendments has been tabled on SEN.

We have had a long and interesting discussion about the role of governors, with a wide range of views expressed. The right reverend Prelate the Bishop of Lincoln talked about concerns that governors would be the Government’s narks. The noble Lord, Lord Northbourne, approached concerns about the number and role of governors from one point of view, and my noble friend Lady Perry approached it from the other. She made it clear that, in thinking of all these issues, we need to strike a sensible balance. We can perhaps all think of our own examples of charities which may initially have been set up by someone who had a personal interest in an issue—one might have said, “Well, that person has a personal interest in this charitable issue, so I am not sure that he or she should have too much influence”—but which, over time, became completely self-sustaining. In principle, there is no reason to think that that should be any different in the case of the schools. The noble Lord, Lord Northbourne, said that, from his experience of independent schools, that model has developed over a long period.

I turn to Amendment 24. We will require through the model funding agreement with academies that the governing bodies have at least one parent governor. I know that there are those in the Chamber who feel strongly that that number is not enough. A number of later amendments will allow us to discuss that at greater length.

Might the Minister perhaps think a little more about the composition of governing bodies and write to me and the Committee? Just to say that there will be more than one parent governor, but, apart from that, that it is a matter of chance, is not quite enough.

I am not sure that I would say to the noble Lord that it would be totally a matter of chance. Fundamental to the Bill are trust and the principle of freedom. Throughout the Bill, we are seeking to be as enabling, permissive and as little prescriptive as possible. That principle would obtain also in our attitude to the question of governance. Our starting point would be that people wanting to set up these schools and exercise these freedoms would have a view as to what the most sensible membership of a governing body would be. The noble Lord will know from his experience that the best kind of governing body has a broadly drawn membership, bringing in expertise and experience from many areas. I am happy to discuss with him outside this debate whether there is anything further I can do.

Notwithstanding that my Amendment 82 in a later group deals with this very matter and I would like to talk about it then, does the Minister not agree that if a school is set up on the demand of, and by the organisation of, a group of parents, it seems a little strange to have only one of them as a governor?

I am being helped by noble Lords opposite who know far more about this subject than I yet do, so I am grateful for their prompting. The proposal is that there should be at least one parent governor. In practice, if one were to draw up a list and look at what happens on the ground, one would find that academies tend to have varying numbers of parent governors, often many more than one. That is because academies have worked out for themselves that having those parents involved is a good thing. Parental involvement is a good principle. It is sometimes thought that academies are conspiracies against their local area and against local people, but I have seen no evidence of that whatever. In the academies that I have seen, it has been exactly the opposite. It would be wrong if I have given my noble friend the impression that I consider one parent is correct. The statutory requirement is for at least one, but in practice it would be many more than that. However, we will return to this debate later.

Picking up on that point, it is the Government's view that there should be broad representation on the governing body of academies. That is rightly a matter for academies. We are seeking not to be too prescriptive in setting down what those freedoms should be.

Free schools will have to have a fair and transparent admissions policy, just like other academies. They will have to provide places to pupils of different abilities drawn wholly or mainly from the local area and we would expect parent governors to reflect that intake. The arrangement for the election of parent governors will be set out in the articles of association of the academy company. It will make clear that the election of a parent governor should be by the parents or pupils attending the academy and, once elected, they will be appointed to the governing body of the academy trust.

On Amendment 33, moved by my noble friend Lord Lucas, I first apologise that we have not yet been able to circulate the model funding agreements. I want to do that as soon as possible. We are proposing to be able to circulate specifically the elements that deal with admissions, SEN and exclusions, which I know are of particular concern to many noble Lords. We will do that as soon as we can and I am sorry that we have not been able to do it in time for today.

On the question asked by my noble friend Lord Lucas about intervention powers, the Secretary of State has power to intervene when educational standards are in question, if health and safety is an issue, and where governance, including financial management, is at issue. Of course, parents can complain to the Secretary of State and ask him to intervene.

On the substance of Amendment 33, all academies are managed by an academy trust which, before it can enter the funding agreement with the Secretary of State, must have finalised and lodged at Companies House its governing documents, with the memorandum and articles of association which set out the governance arrangements and the governing body. That prompts me to respond to a question asked by my noble friend Lord Phillips. Because of the technical detail, I feel I should write to him to follow that point up.

In the case of outstanding schools converting, we will discuss and need to agree with the governing body of the converting school who will be responsible for establishing the academy trust and the proposed composition of the board of the governing trust. We envisage that the composition of the governing body of the trust may therefore be very similar to that of the governing body of the converting school. The effect of Amendments 2 and 3 would be to deny teachers, charities and parents the opportunity to set up new schools. It would be wrong to deny them that choice, which the previous Government themselves intended to give them and that the Conservative Party promised in its manifesto and restated in the coalition agreement.

I am still confused. Either free schools can be set up under the 2002 Act or they cannot. If they can, why do they also need to have provision in this legislation?

The point of having two ways of establishing an academy is that in addition to the current funding agreement route, it was thought to be sensible also to have a flexible way of approaching the subject, particularly in so far as the new free schools might be concerned. We believe that it is necessary to have that extra flexibility in the system.

So is it the Government’s intention to use this new legislation and not the 2002 Act for free schools? That is the clarity that we need.

I will need to make that clear subsequently to my noble friend Lord Greaves. I will do that as soon as I am able.

Of course.

Amendment 76 in this group would ensure that academy funding agreements would include additional provisions on SEN, including a requirement to comply with special educational needs legislation and regulations as if it were a maintained school. Academy funding agreements already include and will continue to include, as will grant arrangements, provisions setting out the responsibilities of academies in relation to pupils with SEN and disabilities. These include the responsibility of the governing body of the academy trust to consult the local authority and the governing bodies of other schools in the area to the extent that that is necessary for co-ordinating provision for pupils with SEN.

Academy funding agreements also already include provisions that require academies to use best endeavours to meet any special needs of pupils, have regard to the SEN code of practice and have an SEN policy. Academies are already required to appoint a suitable person to co-ordinate SEN provision, but they currently have the freedom to decide who that should be. Nevertheless, academy funding agreements are clear that the key elements of this role are to ensure that the special educational needs of those pupils with such needs are met, including through the co-ordination of specialist provision within the local authority. Where an academy fails to meet its SEN funding agreement obligations, the Secretary of State has the role of ensuring that these obligations are met. Academy parents and pupils also have the same rights of access to the First-tier Tribunal (Special Educational Needs and Disability).

I hope that the setting out of those measures will go some way to reassuring noble Lords on this issue and I know that we will return to debate it further. However, I have listened to a whole range of noble Lords speak eloquently in this House and elsewhere about the need for absolute parity between academies and maintained schools and those points have been forcefully made again this evening. I have had meetings on SEN with a number of noble Lords from the Cross Benches and all sides and I have been particularly impressed by my noble friends of the Lib Dem Benches on this issue. I am conscious that the expertise in this House on special educational needs and vulnerable children is considerable, and I am certainly not an expert in these areas myself. I have tried to approach the question of parity from first principles rather than from having the depth of knowledge that many Members of this House have. Having thought about it from first principles and reflected on the points made by the noble Lord, Lord Low, endorsed by the noble Baroness, Lady Warnock, and underlined by my noble friend Lady Williams and many other Lib Dem noble friends, I can say to the House that I will commit to think about how best to achieve parity. In principle, that seems the right way to go, and I shall come back to the House on Report with proposals.

I thank the Minister for giving way. Will he also think in his deliberations about both routes for academy designation—through an agreement and through the grant letter?

One is approaching this from first principles, and first principles are first principles. I give an undertaking to come back at Report with proposals as to how one could put the principle of parity into effect.

I had intended to thank the Minister for the letter that he sent to many of the Peers who spoke at the Second Reading of the Bill and to ask that he at least acknowledge some of these points. The Minister has already done this, which means that he has shot our fox to a certain extent, because a lot of us have a lot more amendments to make. I trust that the Minister will take them in the spirit in which they are offered, consider them and perhaps meet us again before Report. If he could do that, we would be extremely grateful.

I would not like to deny the noble Lord, Lord Rix, the pleasure of the hunt. I had no intention in shooting his fox, but it struck me in listening to the debate that, given that was my view, it made sense to make that clear sooner rather than later. I know that the noble Lord and others who know huge amounts about this subject will want to make many points, and I am always happy to have them made to me.

I have just one small point. The Minister indicated that having given very full consideration to all these points he will come back at Report with proposals. There are strictish rules about the sort of questions that can be asked at Report. Given that the Minister will be making almost a Committee stage announcement, will it be acceptable if some of the questioning flows back into the allowance given to Committee stage?

We have two more days to debate these issues, and I am sure that we will come back to them. The answer to the noble Baroness’s question is, as much as it is possible, yes, of course.

Having concluded on Amendment 76, I urge the noble Baroness, Lady Morgan, the noble Lords, Lord Greaves, Lord Lucas, Lord Northbourne and Lord Low, and the noble Baroness, Lady Warnock, not to press their amendments.

I thank my noble friend for his reply and look forward to the model agreement, or the bits of it that we will get. Yes, charities do evolve, generally, a self-sustaining model for their governing body, but those that do not, die. Schools that do not either die, as many have this year, or the bursar very quickly puts other arrangements in place. It does not seem that those triggers are there for a straightforward maintained school with no sponsor. I shall return to this matter again in another context but, before the passing of the Bill, we need to know how we can stop schools getting into a real mess and how we can pick it up early and do something about it.

We have had a very helpful and full debate, and I thank the Minister for replying so comprehensively and in such a helpful way. To return to my earlier remarks, and picking up on the point that my noble friend Lord Adonis made, I think that it would be helpful—now that we know that free schools will be academies, and being in favour of reducing the alphabetti spaghetti, or soup, as the House was earlier—if the proposal forms for the free schools were called proposal forms for academies. We should get that clarity and consistency, so that those outside, who have not had the benefit of listening to the deliberations that we have had, can be clear about the relationship between new schools, free schools and academies. That would be very helpful.

I hesitate to prolong this debate, but after all that has been said on this group of amendments, is it not sensible to have the phrase “free school” somewhere reflected in the Bill? The Government themselves refer to these new academy schools as “free schools”. I should have thought that, in trying to make the legislation as helpful as possible to the poor devils who have to implement it hereafter, that would be a useful thing for the Government to contemplate—and I should be grateful if he would.

Amendment 2 withdrawn.

Amendment 3 not moved.

Amendment 3A

Moved by

3A: Clause 1, page 1, line 3, leave out “person” and insert “individual or organisation”

My Lords, in moving Amendment 3A, I shall speak to Amendments 4A and 101. My noble friend Lord Adonis drew our attention to the similarity between Clause 1 of the Bill and the relevant Section of the Education Act 2002. However, the difference between this Bill and the section devoted to academies in the 2002 Act is the scale of the new initiative and the fact that this Bill will encompass so many new schools. Therefore, it is right that there are more safeguards and stringent checks than were perhaps required in the past.

Amendment 3A and the first part of Amendment 4A in some ways refer back to the debate on the previous group of amendments, but they are still pertinent. It is surprising that there is no provision in the Bill for any “fit and proper person” test to discern whether a board of governors or anyone to whom they may contract the running of a school are appropriate persons to take on the role of governing an autonomous school without local authority support—and, seemingly, much reduced inspections. This lack of safeguards would be concerning, but it might be understandable were there provision that the concerns of the community were taken into consideration in conferring this significantly increased responsibility or even power on existing boards of governors. This Bill appears to compound that lack of safeguards rather than tempering it by cutting out any right of these obviously vital stakeholders to be consulted. Amendments 3A and 4A are designed to address that crucial gap in the proposals.

The issue of consultation should be central to the Bill. However, as the noble Lord, Lord Turnbull, said at Second Reading, consultation is a serious hole in the Bill. Amendment 101, in the name of my noble friend Lady Morgan, would ensure that the requirement to consult various interested groups in the community is in the Bill. This is not a delaying tactic—I am not attempting to put any delaying hurdles before the Bill—but I believe that consultation is an imperative.

The amendments are also intended to temper an effect that the Minister of State for Children and Families in the Department for Education identified some time ago, when she said:

“Unless you give local authorities that power to plan and unless you actually make sure that there is money available ... it’s just a gimmick”.

I am sure that this Bill is not a gimmick, but local authorities have a role in planning and delivering education in the community that remains far more democratically accountable and responsive than a system that relies on the Secretary of State sitting at his desk in Whitehall. As was pointed out at Second Reading, there is difference between political rhetoric and reality in relation to the Bill. The Prime Minister said some time ago:

“So we will take power from the central state and give it to individuals where possible—as with our school reforms that will put power directly in the hands of parents”.

The coalition programme—in section 4, on communities and local government—says:

“The Government believes that it is time for a fundamental shift of power from Westminster to people. We will promote decentralisation and democratic engagement”.

I believe that consultation is a vital part of democratic engagement. However, this Bill is not so much about decentralisation as about centralisation. Power is being taken away from the people and given to the Secretary of State.

Community cohesion is dealt with in the next group of amendments, but at Second Reading the noble Lord, Lord Greaves, made the important point that the wider views of the community should be taken into consideration in relation to decisions about schools, as the education system must serve the whole community. I believe that the community should be included in any consultation. Consultation, apart from being the right course of action, enables time for reflection about governance and accountability and about how schools can best use new freedoms to their advantage but without disadvantaging the rest of the community. Local authorities, parents, children and the staff—both teaching and non-teaching—see issues in the round and, unlike the Secretary of State, are aware of local circumstances and sensitivities. They are best placed to know the needs of the community and to express concerns that might not have been considered about the consequences of a conversion. They can reflect on the impact on neighbouring schools.

I also believe that there must be parental involvement from the first if the schools are to succeed. That means involvement in a parental consultation process. To have one or possibly two parents on the governing body that makes an application to the Secretary of State is not enough. Wider consultation with parents is needed.

The Secretary of State has said publicly that he hopes that some schools will be able to convert to academy status by the beginning of the new academic year this September. Some looking at this from the outside suspect that the haste and determination with which these schools are to be converted owe more to political considerations than to any particular urgency. I believe that there is more to this issue than politics. Introducing a proper measure of consultation would enable the Government to demonstrate that this Bill is not just about politics but about improving standards and improving our education system. However, time is needed for consultation. If that means that schools that are anxious to become academies have to wait a few more months before they can do so, so be it. Consultation is important for the schools and for communities.

In the Statement, I think that the Minister said—I may be mistaken—that there would be consultation on the setting up of free schools. Why is there to be consultation on free schools, which will then become academies, but no consultation on academies in relation to this Bill?

In my view, consultation is the key to the success of these new academies. Consultation, when properly undertaken, is a means of ensuring that the right policy for a particular school is pursued and of ensuring the wider ownership of this policy. It will engender the confidence of parents, pupils, staff and the community. This is a means of ensuring the success of the policy.

My Lords, my Amendment 104 is in this group. I am not quite sure why Amendment 3A is in the group—I think that it should have been in a previous one—but the rest of the amendments are all about consultation. I agree with the noble Baroness, Lady Royall, that appropriate consultation, over a sufficient time, leads to good decision-making. The decision that schools have to make about conversion to academy status is terribly important, so I think that they should consult.

I have a few words to say about the amendments tabled by the noble Baronesses, Lady Royall and Lady Morgan. I am not sure why they felt the need to include CRB checks in Amendment 4A. I am sure that the Minister will correct me if I am wrong, but I thought that all those who had dealings with schools had to have CRB checks anyway. Indeed, I know a young teacher who does both paid and voluntary work in a number of schools and has had four CRB checks. I hope that the coalition Government will smooth out that totally unnecessary duplication. Also, surely the Government normally do due diligence on anyone with whom they intend to sign a contract, so I think that the second subsection in the amendment may be superfluous, too.

The main point of this debate is consultation. Of course schools should consult all the relevant people and provide them with the information that they need to be able to respond appropriately. To become an academy is an enormous change in the governance and funding of a school. Indeed, I think that it is very risky, as Clause 1(2)(b) and Clause 1(3)(b) give enormous power to the Secretary of State without any scrutiny by Parliament. Perhaps we will get that changed during the Bill’s passage through your Lordships’ House. We will discuss the merits of these arrangements later, but the fact remains that a school that becomes an academy under the Bill does so entirely at the whim of the Secretary of State, so it needs to be sure about the potential benefits of the change to the education that it provides to all the children in its locality.

Incidentally, I do not believe that these schools should be called “independent”, as they have been described. They will be totally dependent on the Secretary of State for their funding and the terms of their operation. My noble friend Lord Greaves referred to them as “autonomous”, which I believe is a better expression.

The difference between our amendment on consultation and those tabled by the Opposition is that we do not include the trade unions. I thought that I should explain why that is. Unions are national organisations, whereas we have proposed consulting local people or organisations that have a keen interest in the school. No national organisation can have a relevant view of the merits of the application of every individual school. The local people matter here and it is they who should be consulted.

That is especially true of the children. I have been in your Lordships’ House for 10 years. At the start, when the Labour Government brought legislation before us, we had to put down a lot of amendments about what I call the voice of the child. Gradually, the Government got the message and, I am glad to say, such provisions started to appear in Bills, so we did not need to put down those amendments. I hope that the Minister will take into account the fact that, when you consult children about things that affect them, you get better decision-making. I also hope that, if he cannot accept these amendments, he will at least put this in guidance, so that schools have to consult the appropriate people.

On the matter of the documents that should be sent out to the people who are being consulted, Amendments 101 and 102 are far too prescriptive. We would leave it to the schools to judge what material it is appropriate to send out. On these Benches we intended to add something much briefer and less prescriptive but it got lost and did not go down in the end. The period suggested for the consultation is six weeks by the noble Baroness, Lady Morgan, and four weeks by the noble Baroness, Lady Howe. However, the school will have to make the TUPE arrangements with staff, which requires 10 weeks and should not be during the school holidays. Schools will have to take a lot longer than four weeks, and so they should. I have already urged my right honourable friend Michael Gove to hasten slowly, and I shall do the same to my noble friend Lord Hill. That should be the watchword. The decision does not need to be fast but it needs to be right.

I support the amendment proposed by my noble friend Lady Royall. This is a very strange part of the Bill, and I am not sure what the rationale behind it is. The Bill purports to want to know the views of people in communities or schools where children’s lives are affected by what legislation says. However, it excludes from consultation at key points anybody outside the school. I wonder if this comes from the Government’s fears over what happened when they had ballots over grant-maintained schools. If so, I well understand that. That was a procedure that ended up causing terrible arguments and distrust between groups of people and communities who should have been working together. There is absolutely no way that I would want to return to that. Indeed, in my time at the department, we did not have ballots in that manner. I am sympathetic, but the Minister mentioned in the last debate that people are somehow suspicious of academies and free schools. There is no better way of making them more suspicious than to exclude them from being consulted. If the Minister accepts that that suspicion is already there, I am not sure why he wants to risk building it up by, as I say, excluding people from consultation.

I have two more points. When this issue was previously been raised in the course of the Bill, the Minister said that the previous Government did not have means of consulting anyway. Correct me if I am wrong, but the essential difference was that, under the legislation used by the previous Government, one school was closed and a new one was opened. The consultation took place as part of the school closure and opening. In the Bill, the conversion of a school—as far as I can see, there is no official closure and opening—excludes any consultation at all.

Finally, the amendments do not seek to take away from the Secretary of State the right to decide whether or not a school should be granted academy status. You might argue that they ought to, but they do not. I cannot see that they would delay any consideration. If I was the Secretary of State in this situation, I would want to put myself in a position where I took the community with me, just to give any new school the best possible start to its life. To load a school with potential suspicion when that need not be the case is really not acceptable. To accept amendments along these lines, if not in such detail, would be very good for any schools that become academies under this legislation.

My Lords, as a supporter of academies, I very much encourage the Government to accept the spirit of these amendments. I have been involved with three academies. I chaired the first and co-chaired the second. The first academy arose from community consultation. When there was anxiety in the community over the other two, there was consultation which allayed people’s fears. I put it to the Government that the people who are being proposed for consultation—young people, parents, governing bodies—are the constituent parts of the big society. It seems a contradiction that if you want to build the big society, you then exclude the very people who are the essence of it. Consultation is called for here.

My Lords, I refer to my Amendment 102. It is interesting that several differing groups have tabled more or less the same sort of amendments, calling for much greater consultation. The differences between us tend, perhaps, to reflect our own particular interests. The whole area of consultation is crucial and I agree entirely with what the noble Baroness, Lady Walmsley, said about consulting parents, children and young people. This is crucial in today’s world. They will certainly have a view. We can disagree about trade unions but they could be relevant on the ground in local areas.

The point I would like to stress in my amendment is that the governing bodies of other schools in the areas, which might reasonably be considered to be affected by the making of an academy order, should be consulted. This comes back to the wider issue of whether the academy will advantage or disadvantage the rest of the school population in the area. The Minister stressed that he is not disallowing consultation. He is no doubt encouraging it, but he is not giving the view that it should definitely happen. It is not compulsory. I would like to see in the Bill some degree of requiring that consultation take place. The noble Baroness, Lady Walmsley, is not very keen on the second half of our amendment. Nevertheless, if you want to set out a range of issues that need to be looked at and thought about before deciding whether to apply to become an academy, that half is important too.

Finally, there is the letter to Peers dated 15 June from the noble Lord, Lord Hill, in which he wrote about understanding the importance of parental engagement with the conversion process. Everybody is very pleased to see him acknowledging this in the Committee. However, the Department for Education’s guidance to schools wishing to become academies suggests only that schools consider how they might wish to inform staff, pupils and parents of the intended conversion. That is not what I would call consultation before a decision is made by the governing body. It is about informing stakeholders once a decision has been made. I gather, too, that this guidance has not been changed since the letter from the noble Lord, Lord Hill, advising schools to engage with parents. I would have thought that this would be something that the department should include and send off to the various areas that need to consider this issue. On that basis, I would certainly support what the noble Baroness said in moving the first amendment. All the points that she made are very important in making a decision.

My Lords, I will not go through the full list of people to consult, but I will comment on two groups specifically. One is children, who were mentioned earlier by the noble Baroness, Lady Walmsley, and the other is schools in the area. On children, Article 12 of the UN Convention on the Rights of the Child so beloved of the noble Baroness, Lady Walmsley, gives children the right to express views on all matters affecting them and to have these views given due weight. Failing to consult students on matters that may alter both the character and curriculum of their school is a backward step in implementing Article 12. The Government should seriously think about consulting children.

I believe that academies do not have to be part of the local family of schools and that there is no obligation to co-operate with other neighbourhood schools. Unfortunately, I cannot remember where the survey that I have in front of me came from. It was taken a few years ago and involved schools situated near academies. It appears that only 27 per cent of those schools were consulted about the academy proposals, 32 per cent said that the academy specialism was not shared with them, 23 per cent said that it had a negative impact on intake and 36 per cent said that it had a negative impact on the allocation of resources. In order to remove the suspicion about which my noble friend Lady Morris spoke, to get better decisions on these issues and to move slowly, we need to take communities along. Therefore, I urge the Minister to look again at involving local schools that may be affected by the development of an academy.

My Lords, there seem to me to be two distinct issues. The first is that of good practice in the establishment of academies, which was rightly raised by the right reverend Prelate the Bishop of Liverpool. It is clearly good practice that maximum efforts are made to engage the local community. Indeed, it is very unlikely that an academy proposal will be a success if it does not have a very wide measure of support from the parental body, the staff body and the wider community. As the right reverend Prelate rightly says, although the statutory consultation requirements are not present in the case of academies because very few statutory requirements apply in respect to academies, an elaborate process of consultation has taken place in relation to their establishment. In virtually every case consent has been given before an academy is established. I say “virtually” because, in the case of some failing schools, it is not possible to gain the consent of the parental body or sometimes even of the governing body. However, that is distinct from the precise provisions we propose to put in the law. As soon as you read Amendment 4A tabled by my noble friend Lady Morgan, you will see the difficulty of trying to put this into legislation. Having dealt with these issues at the Dispatch Box over a long period, I can say that they are only too clear to me. My noble friend’s amendment says that the groups to be consulted must include those it is perfectly reasonable to include, such as:

“(a) the parents of children of the school

(b) the children and young people of the school”.

I entirely agree with my noble friend Lady Massey about the importance of consulting pupils. One of the things the previous Government did which I think was a big step forward was strongly to encourage pupil engagement in schools, including with school councils, which were a very worthwhile development in schools in recent years. I would certainly expect to see school councils consulted before proposals of this kind came forward. However, paragraphs (f) and (g) of the amendment move into the land of the extremely subjective and difficult to determine. Paragraph (f) refers to,

“any local authority which sends a significant proportion of children to the school”.

What is “significant”? We shall be in the courts as soon as an application is challenged on the meaning of “significant”. Paragraph (g) refers to,

“the governing bodies of other schools in the area which might reasonably be considered to be affected by the arrangements”.

But who decides who might,

“reasonably be considered to be affected by the arrangements”?

Those who oppose proposals for schools to become academies will embark on months of litigation and will latch on to ambiguous wording in legislation that enables them to go to the courts.

While the spirit of these amendments is clearly correct and should be encouraged, as we want to see strong parental and community engagement in proposals for academies, I caution the Committee against seeking to put in primary legislation vague requirements which will open the floodgates to opponents to engage in litigation on the ground of ambiguous legal wording.

My Lords, I should like to set down a marker. If academies are required to accept children with special educational needs, those who understand the needs of those children should be consulted to find out what the effect of the academy would be on their well-being.

My Lords, it seems to me that there is a good deal to be said for consultation in this area, in accordance with the spirit of what was said in relation to the big society, as the right reverend Prelate the Bishop of Liverpool has pointed out. I am sure that we very much support what the noble Lord, Lord Adonis, said about the desirability of reducing the impact of litigation in this area, as that could at best produce only bitterness. Although it might provide rewards for some, it is not a particularly attractive process. Perhaps the consultation should be the responsibility of the Secretary of State rather than of one of the parties given that consultation originated by the Secretary of State, on an application being made to him or her, would be more likely to be regarded as proper consultation than would consultation initiated by the party making the application. Open-mindedness is implicit in the notion of consultation and I am not certain that a party wanting to make an application would necessarily have sufficient detachment to make the consultation effective.

My Lords, following that point, we need to be clear what we are consulting about. There has to be meaningful consultation in this regard. If we are dealing with a school judged outstanding by Ofsted, and the governing body and the head teacher have said that they wish to apply for academy status because they believe that it will give them greater freedom, then what exactly is there to consult about? There seems to me to be a strong case there. I noted the comments made about the right of children to be consulted under the UN Convention on the Rights of the Child. However, who consulted the children when a school was failing? Where was their voice then? Who came round with a clipboard saying, “Tell me what you think about the fact that you’re getting 20 per cent five A to Cs when the guys up the road are getting 60 and 70 per cent?” We have to be clear about what the consultation seeks to achieve and be absolutely sure that we are not trying to delay a process. The noble Lord, Lord Adonis, and his successor wrestled with that process in relation to the academy programme. Consultation could sometimes go on for years while schools were failing. Where a school body has an outstanding record, the process should be allowed to proceed on the say-so of its governing body. However, where a school is failing, in my view the governing body has forgone any rights in that regard and the Secretary of State has a right to intervene. That is in the best interests of children and parents.

My Lords, I fundamentally disagree with the eloquent but mistaken case that the noble Lord, Lord Bates, has just put forward. I discussed the matter this weekend with two chairs of school governing bodies in the area where I live. One of the schools is not sure what to do but has probably made further investigations and is therefore probably on the Government’s list of those schools that have made inquiries. It would rather not take this step but is wondering whether it will be forced to do so because otherwise it will be bad for the school. However, schools should not take this step for that reason. The second school has said plainly that it will not apply, no matter how good it is, because it does not want to break its links with the local authority. That is the school’s decision. Just because a school is outstanding does not mean that it is the right thing for that school to become an academy. A decision has to be made by the people connected with the school and, in my view, by the local community as a whole. As the noble Lord, Lord Adonis, said, if the proposal does not have considerable local support, it is unlikely to succeed.

I have a further amendment on this matter in the next group. As well as being confused about other things in the Bill, I am confused about today’s groupings, which all seem to be mixed up. Unfortunately I was stranded in Yorkshire this morning—the overhead wires were down in the Keighley area, and now I cannot even ask the noble Lord, Lord Adonis, to intervene in the situation—so I could not get here in time to sort out the groupings in relation to my amendments. Noble Lords will therefore have to listen to me again on the next grouping.

However, the issue of the wider community—to which I referred at Second Reading, in comments to which the noble Baroness, Lady Royall, kindly referred—is crucial and must be addressed. That would address some of the problems which the noble Lord referred to in terms of getting it right. Of course you have to get it right. However, I do not agree that the principle of consultation should not be in the Bill because the specific amendments which have been put forward are not quite right. I think that the Government will find it a great deal easier to get support for the Bill, and to get it through Parliament a bit quicker, if they are prepared to look very seriously at this issue.

The real problem is that the Secretary of State, Michael Gove, whom I admire in many ways, is a man with a rather revolutionary mission on this and other matters. Although I am all in favour of revolution, I am a liberal, and revolution must be based on two things. First, it has to be evolutionary—however revolutionary the end product is—and you must get there slowly or fairly slowly. Secondly, you have to take people with you. A sort of Leninist revolution whereby there is a leadership which everyone follows, and if people do not follow it someone such as Stalin comes along and makes them follow, is not the way forward. You must take people with you. A good process of consultation and debate locally among interest groups such as teachers, who have a legitimate interest in the school, and the wider community, is crucial.

The Secretary of State has impaled himself on a problem by setting September as the date by when the first new academies should be set up. Looking at the parliamentary timetable, I am not sure that this legislation can get through by September—not because it will be blocked or obstructed, but simply because of the time that it takes to reach the statute book. There is talk of bringing the Commons back, but if the Commons makes a few changes to the Bill, it will have to come back here, which would mean that it will not go through until we come back in October, unless we are all to be dragged back here screaming in September to get the Bill through in the interests of the revolution. I am not sure that the House of Lords is a body which usually marches behind revolutions—but who knows?

The Government must get themselves off this hook on which they have impaled themselves. They should accept that to do it properly—and it has to be done properly if it is going to work—it will take a bit longer. That is not delaying the legislation by years. Clearly that would be ridiculous. We need a sensible timetable, a sensible way of doing it, and a sensible way of getting local communities—all the people involved in the school, and other schools—to understand and to come to agreements on what is going to happen. If the process is done on the basis of a school selfishly and aggressively breaking away, it will not work. If it is done by agreement among people locally that this is an evolutionary way forward that will probably lead to other schools in the area becoming academies in due course, and if it is done in a sensible and organised way, then it might work.

I cannot resist a comment on a division in the coalition between gradualist and vanguardist politics. I wish to make only one comment, which is that this coalition Government trumpet local responsibility and empowerment for local people. All that I urge the Minister to do is to pay heed to his noble friend Lord Greaves, not his noble friend Lord Bates.

I do not think that anyone who has spoken or, indeed, anyone in the House disagrees with the idea that consultation is a good thing and is probably right and proper. The only disagreement is on whether one needs to legislate for consultation or whether one trusts sensible and grown-up people to behave in a way which guarantees—or provides as near a guarantee as is possible—that their move towards academy status will be a success and will be accepted. As the noble Lord, Lord Adonis, has said, there are very few examples where consultation does not happen—not because it has been legislated for, but because grown-up people have behaved in a grown-up way.

I wish that sometimes in this House we could avoid the temptation to think that every good thing has to be legislated for. Sometimes we should trust people to behave sensibly and in a way that guarantees that when an academy is set up it has the enjoyment and consent of local people.

I should say briefly that all the amendments we are discussing are relevant to maintained schools converting to academies. They do not address the issue of creating an entirely new school, when there will be no pupils, parents or staff. Yet the need for consultation when a brand new school is created is surely pre-eminently more obvious than for even a school which is converting. I merely make that point; maybe my noble friend will provide some reassurance on that issue.

My Lords, as has been the pattern today, we have had a good and lively debate, which has certainly given me food for thought as we go forward. Perhaps I may briefly restate the amendments.

Amendment 3A would change who the Secretary of State could enter into academy arrangements with from a person to an individual or organisation. This is an unnecessary amendment because in law, a “person” is taken to mean either an individual or an organisation.

Amendments 4A, 101 and 102 would require proper checks of any person who was party to academy arrangements and, with Amendment 104, require the governing body of a maintained school to consult certain persons listed in the amendments before applying to the Secretary of State for an academy order. These people would include pupils at school, parents, school staff, staff trade unions, relevant local authorities, other local schools who might be affected and any other person who it is appropriate to consult. It is important to be clear that current legislation does not address these issues. These would be additional legislative requirements that the noble Baroness is seeking to introduce, although I recognise the point made by the noble Baroness, Lady Morris, quite properly and fairly about the change in status; currently there would be an obligation to consult if the school was to close. The circumstances are different and she is right about that.

I will first respond to the broad thrust of what the noble Baroness, Lady Royall, asked—why the urgency? Why can we not take some time? That point was in some way echoed by my noble friend Lord Greaves. I know that I have made this point repeatedly, but part of the answer to the urgency question is that, five years ago, the Government of whom she was a member set out down this path. Five years later, we are still debating it and that represents another five years of children who have not been able to take advantage of some of these freedoms that I know her party, when in government, were keen to extend. In another part of the answer to the urgency question, I underline the point that we made in previous debates that our approach to this legislation is fundamentally permissive, rather than coercive. Simply by putting a flyer there and saying to schools, “Is anyone interested in this? Are these freedoms something of which you would like to avail yourselves?”, more than 1,750 schools have said that they would be interested. Thinking about the point that my noble friend Lady Perry made, that tells us something quite powerful about trust, which one always has to balance against our natural instinct to try to make sure that nothing goes wrong. One needs to listen to those who are clearly keen to get on and feel that there is a need for urgency. My starting point in this is not so much the question of why we need to move so rapidly as of what is preventing us getting our skates on.

I turn to a specific point which my noble friend Lady Walmsley has already picked up on. It is already part of our process to carry out full due-diligence checks on anyone who is party to a funding agreement, and regulations also require CRB checking of all governors. I, like many Members of the Committee, I suspect, have been CRB-checked more times than I care to remember—although not because there was a particular problem, I should make clear.

I was struck by the point that the noble Lord, Lord Adonis, made about drawing a distinction between the spirit of consultation and making it a legislative requirement. He gave examples of the difficulty of getting a satisfactory definition in the Bill within which everyone could operate—and which did not have the problem alluded to by the noble Baroness, Lady Morris, of the old system of ballots, which caused acrimony—and which would not give people who, for particular reasons, might want to frustrate this policy the opportunity to do so. I think that there is broad acceptance on her side of the Committee that the policy is fundamentally good, and these are the detailed questions that we are working through. I was very persuaded by the noble Lord, Lord Adonis, concerning the dangers of being overly legalistic. However, I also accept the point made by him and many other noble Lords on all sides of the House about the spirit of consultation. It is something that clearly one must take seriously.

We certainly expect schools, in deciding whether to make an application to convert, to discuss their intention with students, their parents and the local community. A point that has been well made by a number of Members of the Committee is that that is what happens already, and it would not make sense for a school not to do so. The governing body of any maintained school that is considering converting does, and will, include parent governors, staff governors and local authority governors. These governors will all be part of the decision-making process. Currently, the employer of a school’s staff would also need to conduct a TUPE consultation with all staff and the unions as part of the staff transfer process. On a small point of fact—I know that this point has been raised before—I say to my noble friend Lady Walmsley that there is not a minimum 10-week consultation period; the time is not specified in law but there would clearly have to be consultation with all staff and the unions as part of the process.

In response to a point about informal consultation that I think was made by the noble Baroness, Lady Howe—I hope I shall be forgiven if it was not her—I shall try to be brief as I know that supper beckons. The departmental website will make it absolutely clear that we expect teaching staff, other staff, parents, pupils and the local community to be consulted. The question with which we are grappling—the debate has grappled with it this evening—is how far this process needs to be formalised, with the risk that that might either slow it down or make the process acrimonious. Our view is that there are clear disadvantages—

Does my noble friend accept that if schools want to convert by September, that will give them quite a lot of time as long as they get on with it? However, if he does not want to put this into legislation, will he consider putting it in guidance and not just on the website?

I am grateful to my noble friend. The point about whether schools will be able to convert in time for September has certainly been raised, and there has been a suggestion that the timetable has been politically driven. As I said before, our approach has been to put out the idea and be permissive. Some schools may well convert in time for September, which we think is perfectly possible, as my noble friend says, but other schools will no doubt take longer, and that is also fine.

In response to my noble friend’s more substantive point, which is where my argument was heading, having listened to this debate I recognise that we have to be as transparent as possible in this process. As I said, I recognise the points that have been made about the spirit of consultation, and I can say to the Committee that I am willing to take that thought back to the department and consider how best we can ensure that the conversion process carries the confidence of all interested parties—a point made forcefully this afternoon. On that point, I urge the noble Baroness to withdraw her amendment.

My Lords, this has been an excellent debate and I am grateful for the Minister’s response. It is not that I do not trust people; I fundamentally trust human beings—that is my position. However, I recognise that the need for consultation was not enshrined in the previous Act and that, to date, academies have undertaken consultations because they have believed it to be the proper thing to do, which it is. However, there have been about 200 academies to date and we are now talking about a further 200, another 200 and another 200. If free schools all become academies, that will be an awful lot of schools. We are talking about a fundamental change in our education system. It is not a question of a lack of trust; it is a question of ensuring that proper procedures are undertaken.

I shall certainly reflect on the debate. I certainly understand the fears expressed by my noble friend Lord Adonis, and I would be the last person to want to be overly legalistic. I shall also reflect on the suggestions put forward by the noble and learned Lord, Lord Mackay.

The noble Baroness, Lady Walmsley, suggested that consultation could be dealt with in guidance. That might well be an interesting way forward but, if that were the case—and, as I said, I want to reflect on it, as I shall certainly want to come back to this issue on Report—I would want to see some sort of draft guidance. I would want to ensure that the guidance came before, and was agreed by, Parliament. I believe that consultation goes hand in hand with confidence; it is a matter of dispelling doubts and suspicions.

This is a critical part of the Bill. I am glad that the Minister is going to reflect further, as I think we must all do, and I look forward to our debate on Report. I beg leave to withdraw the amendment.

Amendment 3A withdrawn.

House resumed. Committee to begin again not before 8.58 pm.