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Academies Bill [HL]

Volume 719: debated on Wednesday 23 June 2010

Committee (2nd Day) (Continued)

Amendment 17A

Moved by

17A: Clause 1, page 1, line 17, leave out “an independent” and insert “a non fee-paying”

My Lords, I shall speak also to Amendments 22B, 60B and 60C. The amendments in this group are designed to probe the Government’s thinking on free state education, because there appear to be mixed messages in the Bill. There is a simple but important principle to which I hope we all adhere. This essential principle is contained in the great Education Act 1944, which was brought in by this Government's coalition predecessor, the last formal coalition Government in this country. The principle is that there shall be universal education for all children in this country, and that that education shall be free.

We have been given assurances by the Government that they do not intend that academies should be allowed to charge. However, paragraph 13 of the Explanatory Notes states:

“Subsection (7) provides that an Academy may not charge for admission or attendance at the school or for education provided there”—

so far so good, but it goes on to state—

“(unless the Academy agreement or grant under section 14 of the EA 2002 specifically permits it)”.

Why the “unless”, and why are there any exceptions? I do not understand. The Bill would allow another party—that is to say, an individual, group of individuals or an organisation—to enter into academy arrangements with the Secretary of State, convince him or her that those arrangements should include the right to levy charges for admission to all education at the school, and open for business. I do not believe that that is the situation, but I would be grateful for an explanation and clarification from the Minister.

My Lords, I shall speak also to Amendment 75 in my name. The possibility of charging is apparent in this clause. The Minister will be aware that children with SEN have additional needs that sometimes require additional resources. It is the responsibility of the school and local authority to meet those needs. I would be extremely concerned if there were moves to charge parents for special education provision. I do not believe that it is the intention of the legislation to charge pupils with SEN, but I would welcome clarification on this point.

My Lords, I tabled Amendment 67 in this group. It probes a specific point about how local authorities will continue to fulfil their statutory duty under the Childcare Act 2006 to ensure that there are sufficient free places for every three and four year-old whose parents want one. Local authorities are also responsible, in consultation with local delivery partners, for determining the rate at which providers will be funded for delivering the free nursery places, and for the arrangements for making associated payments. Since April 2004, all three and four year-olds have been entitled to a free part-time early-education place. Free places can be provided by a variety of providers in the maintained, private, voluntary and independent sectors, including preschools, playgroups and registered childminder networks. Local authorities must have regard to the comprehensive statutory guidance set out in the code of practice when making arrangements for the provision of free early-education places. Parents are not required to contribute towards the free early-education entitlement, but may be charged fees for any additional childcare services that may exceed the free part-time early- education place. The number of hours available each week is currently 12.5, which will go up to 15 in September.

Since 2006-07, the funding for under-fives provision has been provided through the dedicated schools grant to all types of provider, including private, voluntary and independent providers. The direct schools grant is a ring-fenced grant for education purposes, but local authorities retain autonomy over how they allocate their spending across the age range to make most effective use of resources at local level. In a recent parliamentary Statement, the Minister for Children, my honourable friend Sarah Teather MP, committed the Government to the extension of the free entitlement to early education, as planned, for three and four year-olds to 15 hours from September and to 20,000 of the most disadvantaged two year-olds—something that I particularly welcome. The amendment seeks clarity about how that will be achieved through the primary academy schools proposed in the Bill. Can the Minister give me some reassurances about this? We do not want academies that make provision for children under compulsory school age, as well as for those of compulsory school age, to charge by the back door.

My Lords, unless the Minister is dead keen to answer points raised on the amendments so far, I remind him that Amendment 64 is part of the group. Would he like me to withhold my comments?

Amendment 64 is in my name and that of my noble friend Lady Walmsley. With this amendment, I have had the temerity completely to redraft Clause 1(7) because, with the best will in the world, it is extraordinarily lumpy and unclear. However, I have made a wonderful boo-boo in the redraft, in that I have said that academy arrangements “may” prohibit, when of course it should be “must” prohibit, so I beg noble Lords’ indulgence and ask that “must” be read in place of “may”. However, my point is that in the existing subsection (7) the difference between attendance at a school and education provided at a school is wholly unclear to me. It says that,

“no charge is made in respect of … admission … attendance … or … education provided at the school”.

I suppose that this is really a probing amendment so that the Minister can tell the Committee what is missing from my comprehension.

I promise that I shall say only a few words but I want to add to what my noble friend Lady Royall said in opening this debate. The very helpful Library notes that we received in the briefing pack repeat what is in the Explanatory Notes, so it is very important that this matter is clarified.

My Lords, I hope that I am able to provide the clarification for noble Lords opposite, including the noble Lord, Lord Rix, and for my noble friends. I start by reassuring noble Lords that academies are prohibited from charging for admission. No pupils on the roll of an academy will have to pay for their education.

On the specific point made by the noble Baroness, Lady Royall, as I said, Clause 1(7)(a) prohibits charging but the Bill as drafted allows for the prospect that an academy may need to charge in certain circumstances. I shall explain the kind of circumstances that I have in mind; I think that we touched on this earlier. For example, an academy may wish to charge for providing evening classes to people not on the school roll. We had earlier debates about wanting a school to be part of a community. Providing evening classes would seem to be a good example of that and the Bill would enable the school to do it. Alternatively, an academy may want another organisation to be able to provide evening classes or other activities that can be accessed by the wider community. Therefore, as we want academies to take part in, and be part of, the local community, that is what the Bill provides for. However, any fees charged would be put back into the academy in accordance with the charitable objects of the academy trust.

So far as concerns charging for nursery or SEN provision in Amendments 67 and 75, I reassure the Committee that academies will not be permitted to charge for education provided during the usual timetabled school hours, including the entitlement to nursery education; nor will they be permitted to charge for special needs provision.

I hope that that provides some reassurance and that the noble Baroness will be able to withdraw her amendment.

My Lords, I entirely accept that the Minister says there is no intention to charge for education. I also acknowledge that it might be acceptable to charge for evening classes—hence the Explanatory Notes. However, I think that there is some confusion here and I should like the wording to be tightened up in some way. At the moment, it looks as though this could be a back door to charging in due course, and that would concern me deeply. Therefore, I ask the Minister to look at this issue so that when we come back to it—and it is something that I shall want to come back to because it is such a fundamentally important question—the wording will have been tightened up.

I am happy to say to the noble Baroness that there is no back door, but I take her point and will of course reflect on what she said.

Can the Minister confirm that the proposition is that night classes do not constitute education provided at the school but are caught by the phrase, “attendance at … the school”? If that is so, I do not get it. At least the Minister might clarify that.

As I said to the noble Baroness, Lady Royall, the intention is clear. I take on board the point made by my noble friend about the need for clarity. I will reflect on that.

Amendment 17A withdrawn.

Amendment 18

Moved by

18: Clause 1, page 1, line 18, leave out from “(6)” to end of line 20

I shall also speak to Amendments 55, 100 and 110. Special educational needs in relation to academies are a key issue for us on these Benches, for Members throughout the Chamber and for many in the world of education, in particular those pupils who have SEN. There is huge expertise in this House, as was demonstrated during the short debate on Monday, when the Minister was clearly in reflective mood. I know that he is listening and I am glad.

I have to say at the outset that I am fundamentally opposed to special schools being included in the Bill—hence Amendment 18. Most local authorities and schools do a good job by children with special educational needs and by their families. Inevitably, local authorities and schools also find parents who are unhappy with the provision that their children receive. The Lamb inquiry, of which all noble Lords will be aware, reported that many parents are happy with what they receive, but it recommended that we need to be tougher with local authorities and schools that do not comply with their statutory duties towards children with SEN. There is much work to be done in this area but I do not believe that the proposals in this Bill will assist in improving the situation for children with SEN. It is vital that we acknowledge that the impact of the Bill on SEN will be far-reaching, controversial and incredibly complex.

Parliament is now being asked rapidly to pass legislation that says that by September this year special schools could reopen as academies. That means, at least potentially, that many of the safeguards and programmes that drive improvements in SEN provision in communities—

On a point of clarification, it is not envisaged or proposed that a special school would be able to convert by this September. The Government have made it clear that it would be the following September—in 2011.

I am grateful for that clarification, which is extremely important. Forgive me if I have misled the Committee in any way.

The Bill, as drafted, could mean that many of the safeguards and programmes that drive improvements in SEN provision in communities would simply be dropped or made no longer relevant. That would redesign the SEN approach taken by government to date and completely disrupt the important work of local authorities in this area. There are also serious concerns that SEN provision could be harmed both by the establishment of academies on such a large scale and by the new academies being drawn from those schools that are already strong and which in many cases would be the best place to take on more SEN pupils and deliver real improvements in SEN provision.

As it stands, and as we have discussed, the legislation completely removes local authorities from consultation on academy status. The central funds for SEN provision will be handed out to many schools in a given area. If that is the case, it is vital that we create a framework that gives local authorities, parents and children with SEN, as well as other academies in the area, some certainty and consistency in relation to other schools in the area about what provision each will provide for special educational needs.

Amendments 18, 100 and 110 deal with the issue of special schools by seeking to remove reference to them in the Bill. The way in which we treat less fortunate members of our society is a good measure of any civilised society. The interests of people with SEN are currently addressed primarily by local education authorities. We are greatly concerned that this Bill will damage the ability of local authorities to fulfil their important role in this field and will run the risk of damaging the education, and therefore the life chances, of a great many pupils with special educational needs—the very last group of pupils whom a civilised society should place at risk.

Earlier, I was mistaken in saying that special schools would become academies in September, which would be much too early. I am glad that that is not the case. However, I still think that the Bill is being taken through its legislative process in haste. Although I now understand that special schools would not have even the permissive right to become academies in September, many issues relating to special educational needs need to be better thought out before such schools are enabled. Perhaps we need to see provisions in the Bill that assure us that all these complex details will be properly worked out before schools for special educational needs can become academies.

My Lords, perhaps I may jump the queue and say a few words about Amendment 55. I am afraid that I cannot support it with any degree of warmth, but it raises a number of questions that I want to put to the Minister.

In contrast to funding for mainstream schools, most funding for special schools is place-led, with the number of places agreed with the local authority and reviewed every year on the basis of local needs. Recognising that academies are funded directly by central government, I seek clarification as to the source of the upfront funding for what the Special Educational Consortium assumes will be referred to eventually as special academies.

As the Minister will be aware, special schools will frequently have a pupil intake from across a number of local authority areas, which could have major implications for the future funding arrangements for special academies. For example, some funding for special school placements will be determined locally, while some will be funded centrally. How can we ensure that the two systems work together in harmony? Will it be for the Department for Education to decide on the number of places at a special academy that should be funded each year? Will special academies be in a position to seek financial reimbursement if a child is placed in a special academy from outside their home local authority?

There are further questions on Amendment 113, but to a certain extent the Minister has already answered the first of them. I believed that it was the intention to allow the schools outstanding in the judgment of Ofsted to become academies by September this year. I seek assurances that “outstanding” in the judgment of Ofsted includes consideration of special educational needs and the outcomes for children with SEN.

As regards Amendment 188, I recognise that one of the principal intentions behind the Academies Bill is to ensure that schools are increasingly able to remove themselves from local authority control. However, academies will still have to continue to co-operate with local authorities in a range of different ways if they are effectively to meet the diverse range of needs of children in their area—for example, in meeting the needs of a child with a statement. The local education authority is legally responsible for arranging that the special educational provision specified in a statement of SEN is made, although the actual delivery of the support will be mostly at school level.

In maintained schools—and I recognise that the current system does not always function effectively—there is a degree of leverage for the local authority to ensure that the special education provision is made. However, because academies are in effect independent schools, local authorities have no levers by which to ensure that academies work in partnership to meet those needs. Parents with children in maintained schools currently have the option of complaining to the local authority, and then the Local Government Ombudsman, if they believe that a school is not meeting the specification in a child’s statement.

The coalition Government propose that parents with a child in an academy must complain directly to the Secretary of State. Where a child with a statement is not receiving the right support and is missing out on their education, parents are naturally desperate to see the issue addressed. I believe that the coalition Government should look carefully at whether handling all complaints about academies via the Department for Education is the most effective way of ensuring that parents get the quickest access to the right support for their child. I seek assurances from the Minister on that point and the others that I have raised.

I shall speak to Amendments 138, 139, 176, 184 and 193 in this group. First, I thank the Minister for the considerable time and trouble that he has taken to talk through the many concerns about special educational needs that have been raised as a result of this Bill. We have received full and helpful replies to many issues, but raising them in Committee ensures that there can be no misunderstanding about the debate and the decisions.

Amendments 138 and 139 are intended to clarify what will change once a school becomes an academy. Under academy arrangements, considerable freedom is given to the governing body and head teacher to vary the operation and organisation of the school. Although there is a requirement that the academy should cater for pupils of differing abilities, we would welcome confirmation that that requirement will be enforced and monitored.

At Second Reading, we raised the matter of exclusion of children with behavioural difficulties. Can the Minister say whether there has been any risk assessment of increased exclusions from the new academies? That, in turn, could lead to the need for more referral or specialist units, which would have cost implications. We know that local authorities have responsibility for placement of pupils with statements. It is not entirely clear how the local authority is to be supported in placing pupils in an academy. If parents feel that the provision is not adequate, as the noble Lord, Lord Rix, mentioned, they have recourse to complain to the Secretary of State. That sounds like a measure of last resort. If there are local problems, would consideration be given to a more local route by which complaints could be channelled in the first instance?

In the annexe to his letter of 15 June, which has already been referred to today, the Minister clarified that academies do not receive local authority funding for SEN transport. Co-ordinating school transport is a responsibility that local authorities have carried out in the past and, presumably, will continue to do. Amendment 139 would confirm that responsibility but would leave open the question of how it would be done most effectively when some pupils need transport to academies and others to maintained schools. There is an additional need to ensure that any complexity in the system does not lead to any pupil who requires transport being overlooked.

Amendment 176 concerns SENCOs. It arises from the fact that academies are not covered by the 2008 regulations for special educational needs co-ordinators, which stipulate that SENCOs in maintained schools must have qualified teacher status. The spirit of the code of practice implies that SENCOs should hold qualified teacher status, but that is not explicitly stated.

SENCOs are key post-holders who co-ordinate provision across the school to secure high-quality teaching and learning for pupils with special educational needs and the effective use of resources to meet the educational needs of children and young people with SEN. The position involves obtaining resources, managing the work of learning support assistants, advising and supporting fellow teachers and liaising with statutory bodies and voluntary agencies, as well as with parents. SENCOs are also expected to contribute to the in-service training of other staff. Those varied duties suggest that SENCOs should themselves be qualified teachers, both to ensure that they have a full understanding of the professional skills of teachers and to give them appropriate standing within the schools in which they operate.

Amendment 184 follows from the previous amendments. It would bring the proprietors of academies into line with other schools as far as their duties relate to SEN pupils.

Amendment 193 is offered to help the Minister. The term “proprietor” is mentioned frequently in the Bill, but no definition is given. In practice with academies so far, the person in Clause 1 often establishes another body to be the proprietor, not least because the proprietor has to be a corporate body and a charity, yet the person in Clause 1 can be an individual. The definition offered in this amendment is:

“‘proprietor’ means the person with whom the Secretary of State enters into Academy arrangements once the Academy has been established”.

I had better address my amendment in this group, since it is the exact opposite of two of the amendments just spoken to by my noble friend. My noble friend Lady Walmsley and I will be in perfect time at eight o’clock tomorrow morning as we practise for the Lords versus Commons rowing race, but there seems to be some dissonance at the moment.

It has long been said that the only people capable of organising school transport effectively are local authorities. I have never seen any evidence produced for that. It seems to go with the assertion that local authorities organise everything best. If that is true, there is no danger in giving academies the right to organise school transport because they will always turn to the local authority, as it does it best. However, I suspect from the practices of local authorities that I have experienced that that will not be the case. Many local authorities, particularly in rural areas, will not offer transport outside the catchment area of the school, even if there are others a mile or so beyond it who might conveniently be reached by the bus going an extra mile.

Many local authorities are not responsive to the requirements of schools and parents in other ways. They just want to organise things efficiently for the network as a whole. The idea that what is efficient for the network as a whole is in some way best for schools and parents and is cheapest is extremely arguable and the best way to test it is to give academies freedom to organise school transport for themselves. When it is more efficient for them to do so, they will do so; when it is not, they will use local authorities. That way we will get the best of all worlds.

Amendment 69 is a permissive amendment along the same lines as that tabled by the noble Lord, Lord Lucas. We are trying to be overprescriptive in this. There may be circumstances under which it would be appropriate for charges to be made, possibly because the child’s parents were well off or because a charity had agreed to pay for the extra facilities being talked about. I do not see why we should screw the whole thing down in the way that it is screwed down in the Bill. My amendment loosens it up and allows a decision to be made on the basis of the facts and the best interests of the child.

There is in fact no sector of education that has more experience of academy-type schools than special education because of the existence of a large number of non-maintained special schools that are sponsored and managed by outstanding charities such as Barnardo’s and a number of other charities whose presidents are in the Chamber this evening. They are entirely independently managed but take their pupils largely or wholly by way of referrals from local authorities.

The improvement of special educational needs provision was of great concern when my party was in office and I know that it will be of great concern to the Minister. During my time in the department, I looked at this in detail and, so far as I could tell, there is no difference in inspection grades, quality or responsiveness to the needs of the special education community between maintained and non-maintained schools. There are sectors where schools that are maintained or non-maintained perform better and sectors where they perform less well. EBD is a classic case where special schools, whether maintained or non-maintained, perform less well.

Indeed, this is an area that needs a significant injection of new dynamic energy of the kind that academies could well breathe into the special schools sector. However, I saw no evidence that a school being managed in the maintained system or in the non-maintained system, which actually gives it greater independence in management than academies have, made a difference either to its responsiveness to the needs of pupils with particular special educational needs or to its maintained collaboration with local authorities, because the whole pupil referral base of these schools depends on the local authorities being willing to place their pupils in them. I therefore do not share concerns about the principle of academies in the special schools sector.

On the contrary, in crucial areas of special educational needs, particularly EBD, the dynamic innovation and attention to the needs of particular sectors that academies can bring could lead to significant improvements in provision and could enable existing special schools to expand their provision and to adapt to improve the way in which they meet the needs of pupils with special educational needs in ways that enhance the overall quality of the state education system.

My Lords, I have just one query. I am grateful, as everyone is, for the time the Minister has already given to this whole area—we have had a whole session on it—and I am enthusiastic about the variety that will be available through the plans under the Bill. However, I am slightly worried that the overall cost might go up if the local authority is less involved in the whole set-up. It might contract out some of its provision. It might do that now, but it might need to do even more than that. Is that likely to put up the cost of meeting the special needs that really must be met if we are to do our duty by those with them, as we all want to do?

My Lords, Amendment 83 proposes that Part IV of the Education Act 1996 applies to academies as it does to maintained schools. Part IV contains what is commonly known as the SEN framework, which makes provision for pupils with special educational needs and covers the assessment and statementing process, admissions, the delivery of services, the need to have regard to the SEN code of practice, and so on. The exclusion and disciplining of pupils with SEN are dealt with elsewhere in educational legislation and are the subject of later amendments.

On Monday, we debated amendments that sought to ensure that academies’ funding agreements contained all the requirements that Part IV of the Education Act 1996 lays on maintained schools in relation to pupils with SEN. The Minister very helpfully agreed to consider how best to achieve parity between academies and maintained schools, and to come back with proposals on Report. I must apologise to him and to the Committee that I could not stay for his reply on Monday on account of needing to attend a function elsewhere, but I read his reply in Hansard and found it most helpful. I thank him and ask him to accept that no discourtesy was intended.

We discussed those amendments then simply because they came up earlier in the Bill, but their scope was somewhat narrower than that of Amendment 83. They provided simply that funding agreements should incorporate Part IV of the Education Act 1996. Amendment 83 would provide that the requirements of Part IV are applied to academies as a matter of law and not simply as part of the contractual arrangement between the academy and the Secretary of State by which academies are governed.

The SEN framework in Part IV of the Education Act 1996 was developed with cross-party consensus. It makes provision for meeting the needs and providing support for children with SEN and disabilities, and gives parents a legal right to ensure that their children’s SEN are met. We know that the Minister is committed to ensuring that academies are subject to the full range of responsibilities in relation to children with SEN that maintained schools are under, but he believes that this can be brought about by contractual agreement. A better and altogether simpler way would be to provide that the requirements of Part IV are applied to academies as a matter of course, and as a matter of law rather than of contract. I suggest that for five reasons. First, it would ensure consistency across all academies. Secondly, it could ensure more comprehensive coverage of the rights and duties in Part IV.

The Minister will say that he can ensure these first two things by seeing to it that the requisite provision is written into each and every funding agreement. Indeed, we know that there is a model funding agreement containing many of the relevant provisions, which has been operating since 2007, including in particular the need to have regard to the SEN code of practice. However, the model funding agreement does not contain all the provisions it needs to. Notably absent are the parent’s right to have the needs of a child with SEN met; the duty to inform parents if the school believes a child has special educational needs, such as is laid on maintained schools by Section 317A of the Education Act 1996; and a school’s duty to admit a pupil with a statement where the parents and the local authority wish this. There are also provisions in other legislation applying to maintained schools which need to apply to academies, but which do not under the funding agreement system. These include the requirement that all SEN co-ordinators are qualified teachers; that maintained schools are required to participate in behaviour and attendance partnerships which aim to reduce the number of children with SEN who are permanently excluded; and the right of appeal to the Local Government Ombudsman should parents believe that a child’s needs are not being met. From the point of view of comprehensive coverage, there are problems.

My third reason for preferring this approach is that it is more transparent. It is far easier to ascertain the legal position of academies from an Act of Parliament than from 1,000 funding agreements. Sometimes one might be tempted to doubt that, but in general it is the case. Fourthly, there are real question marks over the accountability of academies and the enforceability in respect of academies of the rights and duties in Part IV. There is a lack of accountability in the arrangements made with existing academies. Section 324 of the Education Act 1996 gives legal responsibility to local authorities for arranging the provision of SEN as set out in a child’s statement.

There is room for real concern that a local authority’s ability to arrange this provision will be hampered by the independent status of academies and the absence of levers that are available within the maintained sector. Reliance on the funding agreement has the potential to undermine the SEN framework and, as academies become more numerous, there could be a gradual erosion of Part IV of the Education Act 1996.

As regards parents, the system of funding agreements can be somewhat inaccessible and unsuited to obtaining a remedy. The legal framework for SEN gives parents an individual right to see that their child’s SEN are met. Academies are independent schools funded directly by the Secretary of State and are accountable to him mainly through the funding agreement rather than the Education Act.

The Special Educational Consortium has serious concerns that even where the statements contained in a funding agreement are clear, they do not offer parents the same right to redress and protection as the legislation. It seems clear that parents will be unable to enforce their rights through complaints to the local education authority, but it would appear that they do not have a legal remedy either because they are not parties to the contract which governs the academy.

There are also a number of complex questions to do with when complaints can be made to the Local Government Ombudsman, whether academies can be judicially reviewed by parents, and whether the Secretary of State will have the capacity to ensure that many hundreds of academies are following the duties outlined in their funding agreements. This last concern underlay the comments of two parents quoted yesterday in the Guardian. One said:

“At the moment, we also have a local process we can use if provision is not appropriate. It may not be perfect, but it is a local process and the alternative seems to be that, without local authority involvement, we would have to go down to London to make our case and we wouldn’t be able to go to the local government ombudsman either”.

The other parent said:

“I want to be able to enforce my rights locally. I find the idea that we should have to take our concerns to the secretary of state an utterly ridiculous concept”.

That brings me to my final reason for preferring what I might call the legislative obligation approach. The funding agreements are insufficiently robust for delivering the obligations we all want to see academies having. I have been made aware of cases before the SEN and disability tribunal which show that academies are simply driving a coach and horses through their funding agreement obligations when they have a mind to. In one case, despite the fact that the wording in its funding agreement came from the latest model, the academy was applying its own entirely different criteria for admitting children with statements, including setting a quota of one per class and picking what types of special educational needs it catered for. It even tried to argue that the SEN admissions criteria in its funding agreement did not apply at all, and it was running together its ordinary admissions criteria with the entirely different SEN provisions. In practice, the academy was taking no notice of its funding agreement on SEN admissions.

The same thing happened in another case. The criteria that the academy actually applied bore no resemblance to what was in its funding agreement. In both cases the academies, through their most senior people, did not appear to regard the funding agreement as binding on them at all. They seemed to consider themselves able to set their own rules. My informant, the barrister who represented the parents in both these cases, adds, “Also bear in mind that, as you will know, it is rare to get legal representation at an SEN and disability tribunal. Had I not appeared for the parents in these cases, I very much doubt they would have got in. I suspect that the academies in question were simply carrying on as before”. He concluded by saying, “If you want examples of why the provisions on SEN need to be in legislation, then here they are”.

Of course, people can break the law as well as breach a funding agreement, but it is my contention that the law not only provides a more generally applicable approach but is also more transparent and enforceable, and creates obligations that are more clear cut and incontrovertible. When he reflects on how best to achieve parity between academies and maintained schools in this area, the Minister may conclude that the best as well as the simplest course will be to take the legislative route.

I hesitate to prolong the debate at this late hour and I think that my concern is probably a little far-fetched, but this is such an important area to get right that I hope your Lordships will bear with me for a moment. Before I begin, perhaps I may thank the Minister for the pains he took to organise a meeting to discuss this issue, for his helpful correspondence and for the personal note he sent to me, which I much appreciated.

Recently, I was talking with a friend who worked for some time with a number of children with learning difficulties and disabilities, including two children with Down’s syndrome. They were a girl and a boy aged 13 and 14. The 13 year-old was a real terror in a way. They would be having a picnic in the park and she would run away from the group. It was very annoying and difficult to manage for the teacher. She was a wonderful girl, full of life and really charming, but when getting back on to the minibus after the day out—the excursion—the teacher began teasing her about her boyfriend, the young man. My friend sensed that the teacher was so angry because his authority had been flouted that he was using this devious way of getting back at her.

The point of the story is that we need excellent teachers working in this area. The noble Baroness, Lady Garden, raised the issue of the status of SENCOs and said that they should be qualified teachers. It may be far-fetched because I suspect that many of the teachers working in this area have a particular vocation and will not think of leaving it. I imagine that when academy status is introduced, most of the schools that will go into it will be secondary schools and there may not be an issue. However, I remain concerned. I am grateful for the Minister’s reply on this and for the comments of the noble Lord, Lord Baker, but if the uptake of academy status is a great success and academies cream off the best teachers into their purlieu, it will be worth considering whether teachers who might have considered going into special educational needs will choose to go to these schools. The Minister said that he is not expecting a revolution; that this is a small-scale change. However, I am not sufficiently reassured by what he has said so far. The noble Lord, Lord Baker, said that the same thing was said about city technology colleges—that they would be the end of the world—but in fact they proved a welcome addition.

I approve of giving schools more autonomy but we need to think through what the general impact may be on the workforce. I refer particularly to the previous Government’s record on health visitors. In 1998, health visitors were hailed as the champions, the pioneers of the Government’s plans for early intervention. Ten years later, where are we? We have an ageing workforce, most of whom are about to retire, with great shortages and too heavy a case load. I was talking to a health visitor—a nurse with the responsibility of funding several London boroughs in this area—and she said, “I have to choose between funding the Sure Start centre, funding the Family Nurse Partnership and funding the health visitors”. It was all done with the best intention, but it is between these stools that these matters fall. I encourage the Minister to recognise the point and reflect further on what the impact might be if his plans are successful.

My Lords, I agree with the remarks of the noble Baroness, Lady Garden, about SENCOs; she made a very important point.

I had not intended to intervene but in briefing sent to me by TreeHouse, the charity that runs a school for children with autism, there is a question that has not yet been raised in the debate. It relates, particularly, to children with autism but I think it applies to children with SEN. Indeed, TreeHouse has worked with the special educational consortium on the Bill and agrees with all the briefings that it has sent to different Members of the House. In regard to the application of the SEN legal framework, TreeHouse states:

“Currently the Academies Bill provides that Academies are bound by the SEN Code of Practice, which is statutory guidance”.

In its view,

“This provides only a small part of the legal protection that children with autism and their families currently have in maintained schools, where their rights are more strongly protected by legislation through the Education Act 1996 and the School Standards and Framework Act 1988 in addition to the SEN Code of Practice”,

which other Members have mentioned. It continues:

“Schools that become Academies will therefore have weaker responsibilities for children with SEN, who, in turn, will have weaker legal protection”.

It is a legitimate question for TreeHouse to raise and I hope that the Minister will be able to answer it.

My Lords, I am grateful for the points raised during the debate and for the kind words that many noble Lords have said about my effort to understand these very complex issues—which I have not done fully at all. However, as I said on Monday and am happy to repeat this evening, I cannot see any logical argument why one should not strive for the principle of parity. Whereas I am not able to say to noble Lords that I am able to come up with particular proposals at the moment or to endorse the persuasive arguments made tonight, I have said that I shall come back with proposals on Report.

A number of very persuasive and forceful points have been made, whether they were to do with complaints, funding or transport. I shall reflect on them with my officials. As these issues are more complicated, and as I explained to the noble Baroness, Lady Royall, it is the intention that the schools should not convert until the following year, which gives more time to work these things through. I hope noble Lords will find that reassuring.

I do not know whether I should declare an interest for proprietary reasons, but I shall do so anyway: my wife has been a long-time volunteer and instructor for the Riding for the Disabled Association, working with a wide range of children and adults with a range of mental and physical disabilities. I therefore know a little of some of the work that charities and noble Lords do.

Rather than prolong the debate tonight, perhaps I may respond afterwards to all the points that have been made. I simply restate my commitment to reflect on them and to come back with a proposal on Report. I therefore hope that noble Lords will not press their amendments.

My Lords, I am grateful to the Minister for that response and for again saying that he will come back to this issue on Report. I know that time is tight, but if his amendment could be tabled as soon as possible so that we could see it well beforehand, we could decide what action, if any, we wished to take on Report. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendment 19

Moved by

19: Clause 1, page 1, line 20, after “pupils” insert “or prospective pupils”

My Lords, I shall speak also to Amendments 20, 42, 44, 62 and 71. They are probing amendments, designed to ascertain what the Government are really planning or, if they are not planning anything, to try to encourage them to do so.

The amendments relate to special educational needs in the context of emotional and behavioural disadvantage, because the needs of EBD children are in some ways very different from those of many other SEN children. I shall change the mood, I hope, of the debate by asking whether academies could not be a positive force for good in the provision of help for these disadvantaged children.

Let us not delude ourselves: local authorities are in charge at the moment and it is not going wonderfully well. As we sit here today, there are nearly 1 million young people in this country who are not in education, employment or training—the so-called NEETs. That is about 10 per cent of the total population of 16 to 18 year-olds. I see this group of young people as a challenge and possibly a great opportunity for the new academies. But if the academies are to tackle this challenge, they must have the freedom and the power to address it effectively. I will quote from three recent reports that confirm the nature and the urgency of this problem.

Action for Children’s report earlier this year referred to the overriding importance of intervening as early as we can to support our most vulnerable children and their families. It states:

“The deprivation these families experience is deeper and more complex than poverty alone, and the belief at the heart of this work is therefore that fiscal help alone will not stop their problems from being passed on through the generations”.

The report goes on:

“Where there are multiple risk factors, the evidence is that deprivation is passed down from one generation to the next … This is often seen in the way relationships develop: children are defiant, blamed by parents and disliked by siblings. They are unpopular at school and get into fights or suffer bullying. Low self-esteem is exacerbated. They do badly at school, become involved in crime and drugs, and by the time they are 17 are on their way to becoming a career criminal. This may seem dramatic, but it is a recognised journey that too many of our children have travelled”.

In the Times last week, Kathryn Ecclestone, Professor of Education and Social Inclusion at the University of Birmingham said:

“There is broad agreement that Britain faces a crisis of mental ill health and poor emotional wellbeing, especially among children … Growing numbers of policymakers and teachers believe that emotional wellbeing is more important than reading, writing and numeracy. The Government’s social and emotional aspects of learning strategy asserts that we cannot leave the “skills” of emotional literacy and wellbeing to “dysfunctional” families”.

I have one final quote. The Centre for Social Justice Green Paper dated 10 January 2010 states:

“Stable … families are at the heart of strong societies … The absence of a stable, nurturing family environment has a profoundly damaging impact on the individual, often leading to behaviour which is profoundly damaging to society. Family breakdown is particularly acute in our most deprived communities. In these areas the concept of society is, for many, alien; whole communities are socially excluded from the mainstream. It is in these areas that we witness the highest levels of worklessness … and offending. If we are to create a fairer, more socially mobile society then we must invest in strengthening families”.

These reports all focus on the needs of children from severely disadvantaged, hard-to-reach, chaotic, inadequate families. Such children present a specific educational problem. If we could get this Bill right, it could bring new hope for many of those children and those families who, through no fault of their own, cannot provide their children with the long-term security, love, hope and boundaries that they need.

President Roosevelt said in the 1930s that it was a wicked thing to destroy a man’s hope, but it is a wicked thing to allow children to grow up without hope. Many of these children end up being statemented as having emotional and behavioural difficulties and often drop out of education altogether. They tend to be lacking in self-confidence, insecure, aggressive, quick to anger and deeply unhappy. It is with this group of children that I have had the privilege of working as a governor of an EBD school and for 16 years in the context of youth programmes at Toynbee Hall in Tower Hamlets. These children, whose families have failed them, comprise a socially and emotionally damaged underclass of which our society should be ashamed. My amendments intend to probe the Government's intentions in relation to the freedom of these academies to innovate in the best interests of their pupils.

I have just one or two questions for the Minister. Giving power to parents to choose may well be a way in which to improve the standard of schools, but what happens to those children whose parents are neither able nor willing to support their children, or who are not concerned, or who do not know how to do so? Who will fight for them? Secondly, with the children in this group the damage has usually been caused in the family long before the child reaches school—even primary school. Will the new academies have the power and resources to reach out and support parents of pupils in school as well as supporting, in the child’s early years, the parents of children who may later become pupils at the school? The noble Baroness, Lady Walmsley, asked that question earlier this evening. I assure the Committee that it is possible to help such parents. I know of two charities already doing excellent work in this area. Family Links, based in Oxford, last year helped some 80,000 parents. School Home Support, based in London, supported about 19,000 families and children last year. Will the proposed academies be able to undertake such work, whether through an associated primary school, a children’s centre or whatever?

Thirdly, will the new academies be able to deliver an innovative curriculum based on their pupils’ needs, which are pre-eminently to develop self-confidence and emotional intelligence as well as age-appropriate interpersonal skills. Could the academies do that, even if it involved omitting many of the academic subjects in the national curriculum? For this category of children, it is essential that they should have some opportunity for hope and success. If they are put neck and neck against children of much greater intellectual ability, it is very destructive.

The Government propose to allow a selection of pupils for special schools that become academies, if such a selection is in the best interests of the pupil. The question that I am going to ask now is controversial. Why do they not allow selection in other academies if it can be shown that such selection would be in the best interests of the pupil?

Finally, who will be in charge under this academy system for the well-being of each child? Will it be the social services, the academy or some combination of the two? I beg to move.

My Lords, I thank the noble Lord for his amendments. His questions have ranged very widely and well beyond the question of academies. Sure Start, nursery education and the pupil premium are all part of a strategy to deal with the problems that he raises. As we all know, the problems that he raises take us way beyond what the education sector in itself can deal with. We have been discussing those with special educational needs across a range of amendments already and have stressed that academies will serve local children of differing abilities, as now. The only exception will be outstanding converting grammar schools, which will be expected to partner weaker local schools. There will be no increase in the number of schools selecting by academic ability, including free schools and converting independent schools. We are offering additional freedoms to academies in a number of areas, including the curriculum, but those freedoms are underscored by a requirement that ensures parity with maintained schools in relation to admissions, exclusions and SEN. That means that Amendment 19 is, I suggest, unnecessary. The requirement to make provision for pupils with SEN effectively includes a requirement to make provision for prospective pupils with SEN.

On Amendment 20, at the moment a child without a statement cannot be enrolled in a maintained special school unless temporarily admitted for an assessment of their SEN. Academies and special schools would also be able to admit only children with statements of SEN. This is right; if it were not the case, non-statemented pupils with lesser needs would take up places in special academies previously reserved for statemented pupils, with local authorities left to find a place for those with more complex and costly needs.

On Amendment 62, the Secretary of State already has a power to agree a broad range of SEN provision with academies, without it being in the Bill. Moving on to Amendment 42, I am sorry that the noble Lord, Lord Baker, is not in his place. It is already accepted that specialist academies are not limited to specialism in academic subjects, as he explained with enthusiasm during our first evening in Committee. On Amendment 44, similarly, the legal definition of ability already includes academic ability.

Amendment 71 raises some wider issues and the question of encouraging academies to make a much more active effort in providing guidance and advice to disadvantaged pupils and their families—in a sense, to go out into the hedgerows and compel them to come in. This has, until now, been a duty of local authorities and it will be something that local authorities continue to do. Local authority duty extends to advice concerning academies. There is a limit to how far one can legislate in detail on this, but we very much see academies—as primary and secondary schools do now—working with the other social services, looking for children who would benefit from that sort of education.

To end where I started, some of these points are covered by other policy areas where the previous Government and the new coalition Government have already engaged, such as the pupil premium, Sure Start and elsewhere. Given that, I hope the noble Lord will withdraw his amendment.

I thank the Minister for his reply to my noble friend. However, does he also recognise what policy in the past 10 years has recognised? These children—from difficult families that are complex to deal with—need a seamless provision of services. The Children Act 2004 enshrined a duty on all agencies to work together to safeguard and promote the welfare of vulnerable children. I spoke recently to the manager of a children’s home in Camden. He said, “I used to manage a private home which was reasonably good, but it is so much easier for me to run this home because the services in Camden are so well connected. Mental health and social services work with the children and their families”. The general principle that I think my noble friend is driving at is: please reassure us that there will be no risk of fragmentation. I suppose that is the word. It proved so hard to get everyone to work together in the best interests of the child. We certainly would not want to put that in jeopardy.

My Lords, I do not think any of us realised that the Minister was going to reply quite so soon, before there was any other opportunity to support my noble friend Lord Northbourne’s point. One of the crucial issues is what we all know is happening and has been happening for 37 years, since Keith Joseph first mentioned the cycle of deprivation. All this has been going on and we have not managed to cope with it. The pertinent question is: who will get the right provision and the early statement for young people so that they can be helped at the earliest possible age? Who will ask that question for these individual children in this state? On any view, they cost us all—the individual and the country—huge sums of money. We have really failed in this way. We have all been talking about it for 37 years. I would very much like to have that point addressed.

My Lords, I did not hear my noble friend answer the point made by the noble Lord, Lord Northbourne, about the curriculum. These children have broken free from the ordinary structure of education and need to be reconnected with it. That process of reconnecting with it is in no way aligned with the idea of a curriculum based on English, maths or other academic subjects. You have to hook them on something to which they relate and then you can bring them back to academic work or whatever else is necessary to build their career. You have to be able to let go everything that they have rejected about the school and find another way into their psyche.

I am sure that my wife, who spends a lot of her time working with these people when they reach prison, would endorse that. She uses family ties because by the time most of these kids reach prison they have a family of their own. They probably do not know their father and do not have much contact with their mother, but they have children and they can be made to reconnect with them or with the remnants of their family. That can give them the motivation to get back into what you might call school work. But to contaminate that process with school work risks the whole process; you have to be able to adapt what you are teaching to the needs of these children.

My Lords, we are indeed talking about something that goes wider than academies themselves. I visited a secondary school in Bradford some months ago and found that all these issues were raised in the local community. People were concerned that, in pursuing league tables, schools in the area did not do their best to push the difficult pupils off on one another, so as to up their game in the league tables. We are all conscious that this is a long-term problem and one that we shall have to continue to grasp as we move towards establishing more academies.

As regards the curriculum, children’s statements will specify the provision required to meet each child’s needs. This will include the curriculum requirement and whatever else is needed to meet emotional and behavioural needs. Academies will have greater flexibility in relation to the curriculum. That is part of what is intended. Academies will be encouraged to work with other local services, both public and third sector, to cope with these sorts of problems. As the noble Baroness, Lady Howe, remarked, this issue has been with us for several generations and it will not go away very quickly. We must do our utmost to ensure that the schools we are trying to develop pick up these children and give them the help that they need. The greater curriculum flexibility that the academies can provide may help in this respect.

I am most grateful to the noble Lord. I shall, of course, read what he has said in more detail. However, I wish to make one or two small points. I think that he referred to what I was saying as not being part of education. Education is the fundamental development of the child.

I accept that. I do not know whether the noble Lord has ever tried to get a statement, but I have friends who have had to get statements for disabled children who they have adopted. It is unbelievably difficult to get a statement out of the local authority. You have to be prepared to fight and fight. I support the Government. Let us look at this as an opportunity because, quite honestly, some local authorities are not doing terribly well. Some are doing well, but quite a lot are not, so let us recruit the academy movement into trying to solve some of these problems. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Amendment 20 not moved.

Amendment 21 had been retabled as Amendment 22A.

Amendment 22

Moved by

22: Clause 1, page 1, line 20, at end insert “and has characteristics that include those in subsection (6)(a)”

My Lords, I should like to take this opportunity to say how much I welcome the fact that the Bill requires mainstream academies to have characteristics which include teaching a balanced and broadly based curriculum, and provide education for pupils of different abilities. I trust that that includes pupils with a learning disability. However, I am concerned that the Bill does not appear to place a similar requirement on special schools converting to academy status. It is important to emphasise that a similar requirement is in place for special schools which become academies and ensure that they offer all children with SEN and disabilities a full and ambitious curriculum, including those working well below age-related expectations. Can the Minister guarantee that outstanding schools granted academy status also provide outstanding quality for all children, including those with special educational needs and disabilities. I beg to move.

My Lords, it is very difficult to guarantee that every school would be outstanding. That is one of the problems with statistics. The amendment in some ways seeks to go in the opposite direction from the intent of some of the amendments of the noble Lord, Lord Northbourne, in that it seeks to impose some restrictions on academies in terms of the curriculum that they offer.

We appreciate the noble Lord’s aim to get some security over the curriculum for pupils with special educational needs, but, as I said in answer to the previous group of amendments, for children with statements of special educational needs, the curriculum should be tailored specifically to meet their particular needs and curriculum requirements, as set out in their statements of special educational needs. We believe for children with SEN with statements this is the appropriate way to specify what they need in terms of teaching. Where a child requires a broad and balanced curriculum, I am advised that that will be specified in their statement, that the school will have to provide it, and that the amendment is therefore unnecessary. I hope that that satisfies the noble Lord. I recognise his deep concerns on this and the expertise on which he draws, but I nevertheless invite him to withdraw his amendment.

My Lords, I cannot believe that I was placing restrictions in this amendment. I believe that I was trying to ensure that the teaching for pupils with special educational needs and disabilities would be of the highest quality and of the broadest possible range. However, I will take the noble Lord’s answer back to the Special Educational Consortium, which acts as my consultants on this, and I may return to this matter on Report. I hope that it is satisfied with his response. I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Amendments 22A to 27 not moved.

Amendment 28

Moved by

28: Clause 1, page 1, line 22, at end insert—

“( ) the school complies with the provisions of the Code for School Admissions issued from time to time by the Secretary of State;”

My Lords, all the amendments in this group state very much the same thing. I therefore support them. I shall speak also to Amendment 169 on the admissions code. The Government have made it clear on a number of occasions that they believe that the admissions code is something by which all schools must abide. We celebrate and welcome this, in particular because there has been some talk, rightly or wrongly, of the Government relaxing or amending the admissions code. I am glad to know that that is not the case.

Local authorities have an important role in monitoring the code. They are now required to report annually to the schools adjudicator on the fairness and legality of the admissions arrangements to all schools in their area. The Bill removes that responsibility for large numbers of schools. The Government say that their aim is that it should be the norm that secondary schools themselves, and not local authorities, will police that. Proper enforcement of a strict code is vital to guarantee fairness and cohesion. As the independent enforcer of fair access to schools, the schools adjudicator now has a wider remit to consider any admissions arrangements that come to his attention, in addition to any complaints received through objections. The schools adjudicator should still report annually to the Secretary of State on how fair access is being achieved locally.

As I mentioned, the Government’s stated intention is to maintain the admissions code in the hundreds of secondary schools that could be academies by the autumn. That is very welcome. If academies are to be the norm—or perhaps I should say more normal than they are now, growing and flourishing—it would be right and proper that the need to comply with the admissions code should be in the Bill. That is what Amendments 28 and 169 seek to do. We have all received many representations expressing fears about the admissions code in relation to the Bill. Simply putting this in the Bill would inspire greater confidence. I urge the Minister to consider it.

My Lords, I shall speak to Amendment 50 in my name. I declare an interest as a trustee of TACT, a charitable provider of fostering and adoption placement in the UK, with offices in England, Wales and Scotland; and of the Michael Sieff Foundation, a child welfare charity. The purpose of the amendment is to ensure that there is not the least doubt that looked-after children will be given first priority in admissions to the new academies.

Perhaps I may say again to the Minister that I was very grateful to him for the helpful meeting on SEN that he organised. I was grateful at that meeting that he acknowledged the concern regarding the different treatment of admissions for looked-after children by academies. He described it as small; but it is significant, and I hope that he will accept that. Perhaps I may briefly remind noble Lords that the previous Government gave first priority in admissions to looked-after children in legislation enacted in February 2009. Grant-maintained schools must prioritise these children. However, in the same regulations, academies are only directed that they “should” prioritise these children. There has been considerable concern about this distinction, which has been greatly increased with the advent of this Bill and the prospect, highlighted by the noble Baroness, Lady Royall, of many more academies, and many of the best performing schools becoming academies.

I apologise for repeating a couple of statistics from Second Reading. A large percentage—28 per cent—of our prison population have experienced care. In 2008, only 7 per cent of looked-after children gained five GCSEs with grades A* to C, compared with 49.8 per cent of the general population. When an offender is given an education, their offending can reduce dramatically. The National Grid Transco programme reduces reoffending rates from 70 per cent to 7 per cent. We are seeing improved outcomes for looked-after children and children in care thanks to the previous Government’s efforts. Improvements in attainment have been modest, but at last they have begun tracking the improvement in the general population. The number of care leavers entering university has increased by 900 per cent. It was 1 per cent and I have recently been advised that it is 9 per cent. It is still far below the level for the general population but it is an important step in the right direction. I hope that the Minister will agree that now is not the time to weaken our efforts on behalf of these children.

I am most grateful to the Secretary of State, Michael Gove MP, for his decision to continue the investment in social work begun by the previous Government—in particular, the setting up of a social work college on a par with the Royal Society of Medicine and the Royal College of Nursing. I am also most thankful for his decision to appoint Dr Munro to review the bureaucratic burden on social work. I am more grateful than I can say for the Secretary of State’s commitment to supporting and developing social work. These children need the best social workers and the best schools appropriate to their needs.

In the past, these children have been put last. They have been disregarded in their families, as my noble friend said, and too often they have been disregarded in the care system. I hope that today the Minister can remove any shred of doubt that he will put them first.

My Lords, we, too, believe that it is important that children and parents choose schools and not the other way round. In speaking to my Amendment 51, I welcome the fact that the Secretary of State has stated that the code for school admissions will apply to academies. We felt that we needed to table this amendment to probe how the codes—please note that it is the plural—for school admissions will apply to academies. There are two codes: one deals with the setting of admissions criteria and the role of the school adjudicator, and the other deals with how parents can appeal against a refusal to admit their child.

Currently, academies are required to comply with the codes “as far as possible” as part of their agreement with the Secretary of State. The codes were not written for the academy sector but for maintained schools. One additional thing that the amendment requires is that parents and the local authority are able to appeal to the adjudicator about admission arrangements. Currently, parents can appeal only to the Secretary of State but that can really only be done after the admission arrangements have been agreed between the academy and the Secretary of State when the arrangements are published. An admission authority—be it a local authority or a school governing body—has to publish, at the school and in a local newspaper, any proposed changes to admission arrangements and allow objections. If the admission authority confirms the change, the parent can appeal to the adjudicator, if he or she wishes to do so.

What is really required here is a single admission system for all publicly funded schools. Having two admission systems, which will still be the case if academies are required to comply with the code only where they can, is not really good enough. Academy status will have perceived benefits on admissions for grammar schools. They will no longer be subject to the rules on parental ballots when changing their admission arrangements. However, if we are to rely on the Minister’s words in his letter to Peers that,

“no non-selective school would be able to become selective”—

words which are very welcome—that would rule out the current ability of a maintained school to select 10 per cent of pupils on the basis of aptitude in music, arts and sport. Can the Minister clarify the Government’s intention on that point while we are discussing admission codes?

My Lords, I should like to speak to Amendments 84 and 85. Noble Lords will be glad to hear that I do not intend to speak to them at anything like the length that I spoke to Amendment 83. Many of the same arguments might be deployed and they both deal with the question of parity between academies and maintained schools.

Amendment 84 seeks the application of the admissions legal framework to academies as though they were maintained schools, and Amendment 85 is the same form of amendment, except that it relates to the exclusions legal framework. They are both essentially probing amendments designed to find out how far the Government see the two frameworks applying to academies as if they were maintained schools—in other words, whether the intention is to achieve parity in respect of these two frameworks as much as it is the intention to achieve parity in relation to special educational needs.

Amendment 36, which is in my name, expresses an ambition which I understand, having listened to the Minister, is clearly beyond the scope of anything that will be put into the Bill. I none the less hope that he will agree with me that it should be our ambition that outstanding schools which become academies, as they have the opportunity to expand, will look to bring in children from way beyond their geographical catchment area—to extend that excellence to those parts of their surroundings that are not blessed with outstanding schools but are blessed with children who require additional attention and the best possible environment. That should be part of our ambition, as it has been part of the history of the academies programme to look first at those who are disadvantaged.

I added my name to and support very much the amendment tabled by my noble friend Lord Listowel. All the speeches I have heard emphasise the need for the point made by the noble Baroness, Lady Royall, about the need for a single admissions code. If there is this doubt—there certainly is, judging from the number of representations I have received about whether similar systems apply right the way through—surely there is a growing case for either having one system which applies to everybody and sticking to it or, as has been suggested, including it in the Bill to take away any misconceptions that still exist.

We should all congratulate the previous Government on their achievement on looked-after children. Quite a group of them have clearly benefited, the figure having moved from 1 per cent up to 9 per cent, which my noble friend mentioned as successes in education. We need to go much further. I understood from the Minister that instructions were already going out to ensure that the schools themselves had up-to-date instructions, but if not they would be put on the net. A number of us would have liked to have leapt to our feet to say, “Not just on the net, please—write a letter so that it is clearly available and everybody will know that there is just one system that really applies to them all”. I hope that he will address that point, although maybe he has done it already.

I very much support the spirit of the amendments. We have had assurances from my noble friend that the academies will be obliged to follow the admissions code, which is certainly the expectation that we have all had. I particularly support the amendment in the name of my noble friend Lord Lucas. As I said earlier, I feel strongly that if the academies are to fulfil their commitment of covering the whole range of abilities, something like a lottery system combined with the banding system will be the best way to do it—indeed, the only way of ensuring it. That would entail moving outside the immediate catchment area of the school and giving the academies an opportunity to produce a social mix of people from different catchment areas and to produce a range of abilities.

I know the Minister’s view is that this is outside the parameters of the Bill, but I hope that it can be borne strongly in mind. I passionately believe that some form of banding is essential if one is to get a full range of abilities within a school. One will otherwise have the problem, very cogently explained by our colleague from Northern Ireland, of a community either of privilege or lack of it gradually growing up contained and homogenised. That is something that none of us in any part of the House wants.

My Lords, we have had an important and wide-ranging discussion and I am grateful for a number of points that have been made. I am grateful to the noble Baroness, Lady Royall, for accepting that the Government have sought to be clear in making certain that the existing admissions requirements that apply to maintained schools will apply in the same way to academies. I shall respond to one of her specific questions about reporting on academy admission arrangements. Local authorities have to collect information on academy admission arrangements and report on them to the schools adjudicator. He will then have to report on academy admission arrangements in just the same way as for maintained schools. The Bill does not change that.

I turn to the question raised by the noble Earl, Lord Listowel. I am grateful to him for his comments. I know that he brings great experience and sincerity to this work. He was particularly concerned about looked-after children. I can reassure him that academies will continue to be required to give the highest possible priority to looked-after children. The Bill changes nothing and I know how important that is to him. I hope that that reply provides some reassurance.

I am grateful to the Minister for giving way, even at this late hour, on this point. The concern raised with me is that paragraph 2 of the school admissions code reads:

“Where mandatory requirements are imposed by the Code … it is stated that relevant bodies ‘must’ comply with the particular requirement or provision”.

However, the code continues at paragraph 3:

“The Code also includes guidelines which the relevant bodies ‘should’ follow”.

The relevant bodies there are the academies, so they only “should” follow, rather than “must” follow, this prioritising of children in admissions. Perhaps I have misunderstood in reading the code; I would appreciate guidance.

Perhaps I could follow that matter up in writing with the noble Earl outside the Chamber and we can pursue it.

One of the issues concerning admissions and exclusions, as has been explained, is the important principle that academy principals have to be free to manage their schools. Therefore, we believe that all schools, including academies, should have the ability to do that. However, parents also need to have guarantees that their children will be treated fairly, so we will ensure that academies are required, through their funding agreements, to comply with the admissions and appeals codes and with guidance on behaviour and exclusions in just the same way as maintained schools.

I note the remarks made by my noble friend Lord Lucas, endorsed by my noble friend Lady Perry, about banding. As he has conceded, that is not an issue specifically to do with this Bill. I know that he has strong views on it. I need to learn more about it and I would be extremely happy to be educated by my noble friend.

Amendments 28, 50 and 51, 84 and 169 would all require the Secretary of State to ensure that academies complied with the school admissions code as if they were maintained schools. Amendment 84 would require them to run their admissions appeals processes as if they were maintained schools. As I have explained, we believe that we achieve that through their compliance with the admissions code and the admissions appeals code. We will make sure that they have to continue to do that.

I will write to my noble friend about that. The ultimate responsibility is with the Secretary of State. I am not 100 per cent certain whether the YPLA is responsible for enforcing it; I believe that it is, but I will write to confirm that. Equally, on Amendment 85, academies are required by their funding agreements to act in accordance with the law on exclusions and to have regard to the Secretary of State’s guidance on exclusions as if the academy were a maintained school.

My noble friend Lady Walmsley raised one or two other points. As she correctly pointed out, there are two codes. Both codes are applied to academies through their funding agreements and that will continue to be the case. I hope that that provides some reassurance to noble Lords and I invite the noble Baroness to withdraw her amendment.

I am grateful for the clarification from the Minister. This has been a useful debate. However, I will reflect on the issue, because it took some time for us as a country to get a strict admissions code that is, to all intents and purposes, properly enforceable. I would not wish for us to retreat from that in any shape or form. I am not for one moment suggesting that that is what the Government are seeking. However, it might be better—and I know that it would inspire greater confidence—if there could be something about that in the Bill. I know from experience that Governments are always, rightly, reluctant to stick everything into a Bill, but this is such an important issue that I may wish to come back to it on Report. I beg leave to withdraw the amendment.

Amendment 28 withdrawn.

Amendment 29

Moved by

29: Clause 1, page 2, line 2, at end insert “and includes specified elements”

Academies are to be freed from the national curriculum, but in opposition we were—and, indeed, in my heart, we are—committed to reintroducing some universal entitlements for our pupils that have been dropped in the previous decade or two, notably an entitlement to learn the span of British history and an entitlement to study three sciences. I do not see how those two attitudes match. What requirements will we be able to put on academies to ensure that, where we see the need for a universal entitlement and for some consistency across the school system, we get it, despite the headline that academies do not have to comply with the national curriculum? I beg to move.

My Lords, although I will be interested to explore the question of the curriculum with my noble friend in the months ahead—not least in the context of the curriculum review, which the Government are carrying out and which will no doubt form the subject of further legislation—the key point is that academies should have freedom to innovate and to be creative with their curricula, to respond to parental pressure, the needs of the children and the needs of the area. From that point of view, we would not contemplate something more prescriptive for academies, so I hope that my noble friend will withdraw his amendment.

That seems rather a thin reply, which does not get to the meat of my question. I shall concentrate on something that I know to be a passion of the Minister’s honourable friend Mr Gibb, a passion that I share. For our children to have a real understanding of British history—not a specified understanding and not a list of things that people have to know—we should say that children should emerge from school with an understanding of the spread and depth of British history as an important part of being a British citizen and of creating British citizens and a unity of purpose and understanding in this country.

Many state schools teach a horrible subject called humanities. It is the only thing that they offer at GCSE. You cannot do geography or history, just this mishmash subject that teaches you nothing in particular. If you do history, you probably do only the great dictators and the Tudors. It has disintegrated so far from what Mr Gibb and I think is right. To say, “Yes, we believe this, but there is no way we are going to apply it to academies”, seems to be missing the point. It is not about schools but about an entitlement for our children and what is right for our society. It is not a big imposition to impose these basic requirements on academies, is it?

As an historian manqué, I could keep the Committee going for an extremely long time talking about my views on what ought to be in the history curriculum and I can see that there is great enthusiasm that I should do that. Medieval history is a subject that I am particularly interested in, as well as modern history and international history. However, I will resist the temptation. We will have to debate further the tension between the desire for politicians to prescribe and the competing instinct, which I have strongly, to let teachers and head teachers run their schools. In the mean time, I urge my noble friend to withdraw his amendment.

Amendment 29 withdrawn.

House resumed.