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Academies Bill [HL]

Volume 719: debated on Monday 28 June 2010

Committee (3rd Day) (Continued)

Amendment 76B

Moved by

76B: Clause 1, page 2, line 13, at end insert—

“( ) Academy arrangements must include terms imposed for the purpose of securing that—

(a) the school’s food policy and catering service promote pupils’ physical and mental health and ability to learn, and(b) all food provided by the school meets the nutrient-based standards for primary and secondary schools currently in place for maintained schools.”

My Lords, I rise to move Amendment 76B, which brings us to a subject that is most appropriate for the slot straight after dinner—school food. The purpose of the amendment is to ensure that pupils in the new academies are entitled to the high standards of school food to which most schools have now risen, with the help of the School Food Trust, the Soil Association and others. We have to thank Jamie Oliver and the previous Government for an enormous increase in the quality and high standards of school food these days. If a great many schools wish to become academies, it is important that we do not lose that benefit for thousands of their pupils. There are now mandatory standards in place for the quality of food served in schools in England. The implementation of food and nutritional standards in primary and secondary schools in 2008, for primaries, and 2009, for secondaries, has seen great improvement in the quality of food served.

There are five good reasons why we need this amendment. First, school food is important for pupils' health and learning. A recent report from Ofsted has confirmed that. Secondly, good quality school food improves children's behaviour and performance. The School Food Trust's School Lunch and Learning Behaviour in Primary Schools research, published in July 2009, shows that children were over three times more likely to concentrate and be alert in the classroom when changes were made to the food and dining room. The School Lunch and Learning Behaviour in Secondary Schools research of July 2009 shows the same benefit for secondary pupils. The School Food Trust research has shown that school meals are now consistently more nutritious than packed lunches. This is of particular concern for children from lower-income families, whose lunches contained more fat, salt and sugar and less fruit and vegetables than children from wealthier backgrounds because, unfortunately, empty calories are cheaper. An affordable school meal service can help to close the gap between rich and poor.

Thirdly, school food is important to help our children maintain a healthy weight and get the nutrients they need to be healthy. School food sets a standard for food quality, encourages healthy eating habits, and raises awareness of the link between diet and health. In England, nearly a quarter of adults and about one in 10 children are now obese, with a further 20 to 25 per cent of children overweight. Research by the Government’s Foresight programme suggests that if current trends continue, some 40 per cent of Britons will be obese by 2025 and, by 2050, Britain could be a mainly obese society. I think that we all know that obesity increases a person’s chances of suffering from many serious health conditions affecting their quality of life and ability to earn.

The fourth reason is that standards at school should set a model for the food outside the school day. A good school meal service can help all children make healthy choices outside school as well as inside it. School cooking and gardening clubs teach healthy eating skills to young people and families to use at home. The skills learnt at cooking clubs increase the intake of nutritionally balanced food, while research from the recent Year of Food and Farming showed that children were more likely to eat fruit and vegetables that they had grown themselves—and so am I.

Fifthly, an Ofsted report just published shows that a good school food policy that promotes a “whole community” approach to food and food culture is as important as a high-quality catering service. It certainly does a whole lot for community cohesion and the enjoyment of our multicultural communities. If academies want to improve their children’s lives and learning, they need to pay attention to their food policy. I beg to move.

My Lords, I support this amendment and I certainly think that the issue of helping children to enjoy wholesome, nutritious food in schools is very important. As the noble Baroness has already pointed out, the issue of obesity in young people is a problem that has been growing over a number of years. She mentioned the risk of the potential epidemic in diabetes and, indeed, other health problems. I have a certain degree of interest in this because I launched our Government’s fresh fruit scheme for schools—it seems many years ago now—in Wolverhampton. That scheme has worked well and, as the noble Baroness suggested, we have seen major improvements in the quality of school meals. It is important that this is not dissipated with the development of academies as proposed in the Bill.

I realise that the Minister may argue that the approach taken by the noble Baroness is, in a sense, trying to micromanage schools. Underlying our debates so far on the Bill is the clear tension running through between the desirability to give individual schools as much autonomy as possible and, on the other hand, the recognition that there has to be some kind of national underpinning. The debates on special educational needs and, indeed, our recent debate on exclusions are examples of that. The question before us is whether nutrition ought to be one of those matters where some kind of national leadership or guidance is necessary. I am persuaded that it is. The issue raised by the noble Baroness about the health of our young people is so serious that we have to look to schools to do their bit to help, and the approach that she has taken is one that we could support.

My Lords, before replying specifically on the amendment, perhaps I may make a clarification arising from an earlier debate. Earlier, in the extremely good debate on PSHE, I said that the independent school standards which apply to academies also contained a requirement to teach personal, social and health education. I am afraid that I was misinformed on that point and I apologise to the Committee. It may be helpful if I provide a little clarification. The independent school standards require the promotion of self-knowledge, self-esteem and confidence; enabling pupils to distinguish right from wrong; and encouraging them to take responsibility for their actions and contribute to the community. All academies do, however, have to have regard to the Secretary of State’s guidance on sex and relationships education. I apologise again for that earlier error. We know from that debate that there are important issues to be picked up on PHSE as part of the broader curriculum review, and I look forward to discussing those with noble Lords in due course.

On the specific amendment to do with school food, and full of my bangers and mash from the Home Room, I realise how important an issue this is for schools. I certainly agree with my noble friend about the importance of good diet and physical health—points also made by the noble Lord, Lord Hunt, with his work on promoting fruit. We take this seriously. Schools converting to academies will already have been providing healthy, balanced meals that meet the current nutritional regulatory standards. We have no reason to believe that they will stop doing so on conversion or that new schools will not do so either. I am not aware of any evidence that existing academies feed their pupils less well than a maintained school. We would certainly hope and expect in every way that they would continue to feed them as well. They are under a duty to act reasonably in the interests of all their pupils.

We believe that parents will demand the high standard of food that is increasingly being maintained. I pay tribute to the work that has been done in recent years to improve the quality of school food. I have heard from head teachers about the importance of good diet and how it improves behaviour and learning. We expect that parents will demand that that should continue. As an aside, pupils who currently receive free school meals will continue to receive such meals from academies. That will continue to be a requirement of the funding agreement. While I very much agree with my noble friend about the importance of this, the noble Lord, Lord Hunt, was correct in surmising that we feel that, in this balance between prescription and trust, this does not need to be set out in the legislation, important though it is. I invite my noble friend to withdraw her amendment.

I thank the Minister for his reply and the noble Lord, Lord Hunt, for his support. I am not aware of any evidence that the existing academies feed their children any worse than other schools. I am not suggesting at all that that happens. I am reassured by the Minister pointing out that schools that convert will adhere to the current nutritional standards. He suggests that there is no reason why they should change, but there is pressure to do so—children like to have chips more than once a week. There have been situations where parents were, perhaps unwisely, pushing pork pies through the bars of the school gates when these nutritional standards first came in. There are pressures to change.

I hope that the future of the School Food Trust, which has been so instrumental in improving the quality of school food and the skills of school cooks, can be assured. I understand that money is tight and the coalition Government will be looking for ways to save money, but I hope that a small sum could be found to make sure that the School Food Trust continues to exist. It has done excellent work in transferring best practice and helping to improve the quality of cooking in schools. It is not just cooking but the whole curriculum involvement in the school agenda in relation to food. Its website is wonderful, with many good examples of creative schools, catering managers and cooks sharing their good ideas with each other. It is the School Food Trust that does that. The Soil Association has also done some extremely good work, and I hope it will be able to continue to do so.

The health and weight of children varies enormously from one school to another. I know that what I am going to say is anecdotal. Recently, a young woman did work experience with me. She attends two secondary schools. One of her courses is in one school and the rest are in another. When we discussed this matter, she said, “It really is odd. At my main school, all the children are slim. At the other school I go to for one of my courses, they are all fat”. I asked her whether she had noticed any difference in the provision of food in the two schools and she said that she had not. But she was aware that in her main school where all the children are slim, years ago boxes of crisps used to be piled high. There were vending machines selling every kind of chocolate and fizzy drink that you could wish for, and chips were on the menu every day. All that has been swept away as a result of the new agenda on high nutritional standards in school food. I asked the girl to send me any evidence that she discovered as regards a difference between the approaches to food in the two schools, but I have not received any such evidence. It would be very nice to be able to say that there is a clear reason for the obesity in one school and not in the other, but I do not have that.

There is a lot of evidence that the quality and nutritional standards of food affect children’s behaviour, learning, social skills, cultural awareness and all the rest of the agenda of which we are all very much in favour. I hope that if we cannot ensure that academies stick to the standards we have the moment, at the very least, we should ensure the future of the School Food Trust in order to disseminate best practice across all schools. I shall then be somewhat reassured. In the mean time, I beg leave to withdraw my amendment.

Amendment 76B withdrawn.

Amendment 77 not moved.

Amendment 78

Moved by

78: Clause 1, page 2, line 15, at end insert—

“( ) At least 25% of the people on the governing body of an Academy will be elected from among the parents of pupils at the school.”

My Lords, we have had one or two little forays about governors and governing bodies in Committee. I have to admit that I am surprised at how small a role governors appear to play in the Bill. I reaffirm my position as president of the National Governors Association in moving this rather specific amendment on its behalf. There is general concern about the small number of parents on governing bodies. I am probing, I hope, to get a full answer on what the Government intend to do about it.

The composition of the governing bodies of maintained schools is set out in the School Governance (Constitution) (England) Regulations 2007. The precise arrangements will depend on the type and size of the school, but, broadly speaking, the arrangements mean that at least one-third of governors will be parent governors; at least two governors, but not more than one-third of the total, will be staff governors; and at least one will be a local authority governor. Existing academies are not covered by any such regulations. Their governor arrangements can vary widely, depending on the views of the proprietor. Academies tend to have some form of limited company arrangement. Some will have a body which calls itself a governing body, while others will state that the school is governed by the limited company, but that there will be an advisory body which may include some parental representation.

The NGA very strongly supports the need for the governing body to represent different stakeholders with an interest in the success of the school. This Government—not least with their launch of the idea of free schools—have a track record of championing the role of parents in setting the ethos and direction of a school. However, surely the way in which parents can most effectively do this is as members of a governing body. An academy is currently required to have only one elected parent as a member of its governing body. One elected parent governor does not represent parental involvement of the kind and extent that government Ministers have been promoting in other ways—or, incidentally, of the kind of numbers involved which the NGA also strongly champions. Its preferred option is to have at least one-third of the governing body as parent governors. The NGA’s advice to any of the outstanding schools which will opt to convert to academies is to retain the current structure, which it believes has served the schools well to date—at least, there is no evidence to the country.

Without the amendment or an equivalent provision, the conversion to academy status would allow a school dramatically to reduce the number of parent governors. Elections to a governing body take place via a democratic process, which is an additional safeguard that is important, perhaps not least because of the move towards more responsibilities for how academies are managed and operated being transferred back to the Secretary of State’s department. Without the amendment, it looks as if the Bill will move away from parental involvement, rather than increase it, as promised.

As the noble Lord, Lord Bates, said earlier, governing bodies are increasingly important in ensuring that excellent education is delivered in all our schools. The Bill will add considerably to those responsibilities. To ensure that schools do that vital job even more effectively, I hope that the Minister can reassure me that the Secretary of State, by one means or another, will ensure that an acceptable proportion of the local school’s parents are on all governing bodies of academies. I beg to move.

My Lords, I have Amendment 82 in this group. I agree with what the noble Baroness, Lady Howe of Idlicote, said about the importance of parent governors. My amendment differs from hers only in that I have specified a range of numbers of parent governors, including a minimum, rather than a percentage, because schools can become tied up in knots if the percentage is calculated to include a fraction of a governor. We would not want a set of legs without the brain. The range that I have specified caters for very small primary schools and larger secondary schools. In both cases, the elected parent governors are an important factor in the governance of schools and fulfil the coalition commitment to involve parents more in the education of their children.

The composition of the governing bodies of maintained schools, as the noble Baroness, Lady Howe, said, is set out in the School Governance (Constitution) (England) Regulations 2007, but academies are not covered by any such regulations. Their governance arrangements can vary widely, depending on the views of the proprietor. In any case, it is vital that on the principal governing body, the board of the academy, or whatever it is called, there is proper representation of parents, staff and the local authority—all of whom have a vital and obvious interest in the good management of the school as part of the local community. My amendment also includes a requirement to have as governors two members of staff, one of whom must be a teacher, and a member of the local authority. Of course, if one of the academy partners—one of the sponsors—is the local authority, one would expect it to have representation on the board anyway. However, all academies should have this.

We have heard from many noble Lords that what makes a good school is not its legal status or how it gets its funding, but the quality of teaching within its walls. I agree, but the staff must feel that they are an integral part of the school, including of its governance. That is why it should be not just good practice but an essential requirement that staff are represented on the governing body.

The Secretary of State has also made it clear that the new academies will have a robust relationship with the local authority. Part of achieving that will be to have at least one member of that authority on the governing board. I am not talking about a majority or even a large number, because it is intended that the school should be autonomous and free from the local authority; but it will be easier for academies to be seen as serving the local community, which they will have to do, if local authorities are represented on their boards.

I was distressed when the previous Government introduced academies with a requirement only to have one parent governor on the board. That is not enough, and I hope that this Government will put it right.

My Lords, I will intervene briefly, partly because I was the Minister who introduced the Taylor report, which laid down a requirement that school governors should include representatives of the staff, of the non-teaching staff, of parents and representatives of the local authority, roughly in the order of a quarter each. It was one of the more successful education reforms, for reasons eloquently set out by the noble Baroness, Lady Howe of Idlicote, and also because deep within the sense of the school was a feeling of it being owned by, and part of, the local community. That was where the significance of parent governors came in. The parent governor often shared the same income and problems of living as the community, and spoke for the community in a way that governors appointed by the proprietor or the agency simply could not do.

Secondly, it is vital to have some representatives from the staff on the governing body, so that they speak as part of the entity of the school and not simply as representatives of a staff union or association: they become part of the body and success of the school. As regards non-staff governors, anyone who knows the extraordinary record of teaching assistants—I thank the previous Government for this—will know that, particularly with respect to children with special educational needs, their role has been crucial and can be represented only by a governor who represents the non-academic staff of a school.

It puzzles me—I hope that the Minister will think hard about this—that a Government committed to the idea of decentralisation, of the big society and of involving far more citizens in building and creating that society, should dream of going back to a situation where we have just one elected parent governor in an academy. One reason for this was that it was felt that in the very deprived communities from which the early academies sprang, they would find it difficult to find more than one parent governor, because so many husbands and wives would be working all day long and would find it very difficult to attend governing body meetings. The much more privileged group that we are likely to see now coming into the world of academies of outstanding schools will certainly find it easier to produce governors, but that is no reason to move away from the principle that in every school—whether the community is deprived or not—there should be a clear commitment to the school by the community. I plead with the Government to reconsider the mistaken decision to cut down the governing body and its composition to just one, at a time when we should try to rebuild and strengthen relationships between parents, schools and the community. It is clear from the coalition agreement that the Government are committed to this.

I will leave this hanging in the air: will the Minister consider ways in which we can bring back the community and its parents to the support of, and involvement with, the school? What was said by the noble Baroness, Lady Howe, and by my respected and distinguished noble friend Lady Walmsley, suggests that this is something well worth thinking about.

My Lords, I, too, ask the Minister to give this important matter further consideration. One of the great strengths of our education system over the past few years has been the involvement of parents in schools through PTAs, voluntary work in schools or, indeed, helping in classrooms. In my experience and that of many others, strong parent governors can enhance the quality of governance within schools.

The noble Baroness, Lady Williams, made a strong point about why the circumstances that applied to the original academies and those that apply to the situation before us now, whereby many schools are projected to become academies, are quite different. I also remind the Minister that we are talking about academies that are to be established without formal consultation and without the involvement of the local authority. If we take that together with the fact that academies at the very least will not be encouraged to have a large number of parent governors and the fact that decisions by Ministers, who are taking a huge amount of power to themselves, will not be subject to parliamentary scrutiny, then the situation regarding parent governors begins to fit a certain picture.

My concern is that we are seeing the development of almost private institutions without sufficient scrutiny at either local or national level. One way to counterbalance that would be to come back to the Bill, either tonight or at a later stage, with a much greater reassurance about the involvement of parent governors on these governing bodies. I believe that the same argument applies to staff members. My experience is that by and large they add value to the institution and enhance the confidence of staff in the governing body. It is important that there continue to be links between the local authority and individual schools. Again, in my experience, the local authority-appointed governors often bring a breadth of experience to the governing body. It would be very disappointing if that were lost.

My Lords, perhaps I may add one small thought to the debate. As I understand it, the parent governor will be not elected but appointed by the board of trustees for the academy. I think that that is a retrograde step. It is important that we have parent governors but I think that they should be elected from among the parents rather than appointed.

My Lords, I agree with everyone who has spoken about the importance of parents being involved in schools’ governing bodies. I completely accept that the Government’s position that there should be at least one parent governor will not be acceptable to the noble Baroness, Lady Howe. However, I start by stressing the words “at least”, because it is easy to elide “at least one” into “one”. That, in part, is my response to the argument made by my noble friend Lady Williams, to which I listened carefully, about the big society and decentralisation. A perfectly proper argument is that a school, which is a very local form of organisation, knows best the kind of governors whom it needs for a properly balanced governing body, and it should be flexible in choosing the right people for that governing body. That is not to say that my assumption is that governing bodies in academies will tend to consist of only one parent governor.

The noble Baroness, Lady Howe, gave an extremely good, common-sense answer to some of the concerns that have been raised: the governing body of any converting maintained school will determine the composition of the governing body of the new academy trust. With a converting academy, those people who know how the governing body has worked with the membership that is currently set out will make the decision. It is likely that they will draw on that experience and take it into account when choosing the membership of the new governing body.

Although it is certainly extremely important to have a broad representation on the governing body of academies, we do not think that it is right to prescribe a 25 per cent minimum. We want academies to be able to choose and to do what they think is right in their particular circumstances.

I say in response to my noble friend Lady Sharp that my understanding is that the arrangements for the election of parent governors will be set out in the articles of association, which will make it clear that the election of parent governors should be by the parents of pupils attending the academy, so there is an elective element. They will be appointed to the governing body of the academy trust.

Amendment 82 would also have the effect of introducing more prescriptive arrangements for the numbers of parent, staff and local authority governors. Again, the Government’s view is that academies should certainly be free to choose a governing body that has representation from staff and from local authorities. We are proposing that in the academy governance model there should be a maximum of two staff governors, but it is true, as has been pointed out, that we propose that academies do not have to have those particular categories unless they choose to.

I know that that will not satisfy all Members of the Committee, but the Government consider this principle of flexibility to be extremely important and we want academies to be autonomous groups. We certainly urge, in the strongest terms, the benefits of having parent governors—I am very clear about their benefit—but we are not keen to go down the prescriptive route. Therefore, I urge the noble Baroness, Lady Howe, to withdraw her amendment.

Before the noble Baroness does so, perhaps I could say a word about my amendment in the group. I was a little surprised to hear the noble Lord, Lord Hunt, backing these amendments, given that it was the Labour Government who reduced the number of parent governors to one, to be appointed by the proprietor in the old-style academies. The excuse of the noble Lord for that change of heart appears to be his claim that these schools will be set up without consultation. Perhaps the noble Lord was not in the Chamber last week when the Minister accepted that a high degree of consultation with all appropriate groups was extremely desirable and that he would come back to us on Report with some suggestion about how he would ensure that that best practice is put in place. We welcomed that.

The Minister suggested that under the arrangements for the new academies a single parent governor, as the minimum, would be elected. That is different from the situation that applied with the academies as set up by the Labour Government. Indeed, it is a step in the right direction, but I suggest to my noble friend that it is not enough. He suggests that, on the basis of localism, the school should decide how many parent governors to have and whether it should have two staff members. I accept that, as he says, it is suggested that they should have two staff members, but they are not obliged to have them as a minimum. I also accept that the school is probably the most localist level one can get, but the proprietor may not be local; the proprietor may be a chain and failing schools will still have to have a proprietor. I therefore suggest to my noble friend that, if the proprietor is not local, it is not a piece of local decision-making if he decides that he does not wish to have two members of staff on the board of governors or more than one elected parent governor.

I remain of the view that it is good for the school, good for the education of the children and good for the link between the school and its community to have the kind of situation that I have suggested in my amendment. It is also helpful to the school in fulfilling its duty in relation to community cohesion. If we put a duty on schools, it is important that we give them the levers to fulfil it and I think that this is one of them.

I do not want to disagree with the noble Baroness, as I agree with the substantive points that she makes in relation to her amendment, but I want to respond to her comments. First, we will wait for Report to hear the Government’s response to the point about consultation, but the fact is that it is not in the Bill. I want assurances that it will not be some fly-by-night consultation but will allow ample time for people concerned to have their say and for that to be considered. On the way in which parent governors are treated under this Bill and under the previous Government’s approach to academies, I, too, drew the distinction that there were specific reasons relating to the situation in which the first academies were created that will not apply where hundreds of academies are being created. However, on the substantive point, I very much share her concerns.

Before my noble friend replies, perhaps I may ask my noble friend on the Front Bench a question. He cited a piece about parent governors being elected. Can he give me the reference to that, because I shared the belief held by my noble friend Lady Walmsley that that was not the case? I would very much like to correct that misapprehension.

My Lords, I am grateful to all noble Lords who have taken part in this debate and very much back the issues that they have been pressing. It will not surprise the Minister to hear that, alas, I am far from happy with his response. His admission that “at least one” tends to drift towards “one” in people’s minds confirms the fairly obvious route.

I hope that the Minister will be able to work this whole situation through. If, as the noble Lord, Lord Hunt, has said, we are going to be looking at vast numbers of academies, although I feel that that is somewhat on the horizon, it really will be the case that local people—the big society, which is back to the Government’s definition—will have to be properly represented and able to do the job that they will need to do to get the best education for all our children, which all of us want.

I have no option at this stage but to withdraw my amendment. However, I certainly cannot guarantee that I will not be back on Report unless I have something rather more palatable to chew on. I beg leave to withdraw the amendment.

Amendment 78 withdrawn.

Amendments 79 and 80 not moved.

Amendment 81

Moved by

81: Clause 1, page 2, line 15, at end insert—

“( ) An Academy is a public authority including for the purposes of the Human Rights Act 1998 and the Equality Act 2010.”

Given the late hour, I shall make my remarks fairly brief. The amendment concerns the issues raised by the Equality and Human Rights Commission about the Bill. By looking at them closely, we can go at least a little way towards comforting, among others, the noble Baroness, Lady Wilkins, who raised the issue of the minimum levels of special educational need, which might be so easily overlooked as a result of the Bill. Let me briefly explain that the Equality Act 2010 dealt precisely with the rights of children to be treated in an even-handed way by the schools which they attend, in particular with regard to children who have what are called protected characteristics—that is to say, children with disability, racial or religious minority issues which might lead to their being unfairly and unequally treated within the school.

Let me be precise about the things that are covered by the legislation. Issues such as harassment, victimisation, intimidation and bullying are part of what is assumed by the phrasing about children with protected problems and how they might be victimised at school. We do not have to go very far into theory to see that that is the real issue. There is the serious issue of homophobic bullying, to take just one example. There are also issues of racial bullying in our schools, which are mostly well dealt with by the staff and the head teachers, but which would nevertheless raise serious issues if they were ever to get hold. The Equality and Human Rights Commission has made it very clear that it regards this as one of the areas where it needs to keep an eye on how children are treated in schools.

In that context, it is perhaps worth remembering the so-called public sector equality duties, which fall on everyone in the public sector, holding them to that same set of obligations. There is considerable concern in the Equality and Human Rights Commission that because in the past independent schools have not been brought under the umbrella of the legislation, academies, which fall into a new hybrid area, as it were, might also be excluded from the operation of the legislation. I say again that the legislation covers quite a wide range, but it certainly covers provision for special educational need and minorities who might be otherwise seriously affected in schools. Provision for disseminating proper behaviour and proper monitoring of such behaviour falls within the terms of the Equality and Human Rights Commission and of the law of 2010.

Let me take one other example, which I think is important. Under the legislation, the Minister has power, in extreme cases, to make directions to order that the body concerned—in this case, a school—take action to ensure that that behaviour is dealt with and ceases because it is outwith the law. If there is no system of monitoring—a point raised very effectively earlier by the noble Lord, Lord Lucas—if there is no attempt to discover what is actually going on and if no one has power to insist that it is put right, the effects of the equality law become immediately blunted. It is so easy to say that equality law is some kind of political legislation, but the issues of intimidation, harassment and bullying are real, with us here and now and need to be dealt with.

In view of the lateness of the hour, I will not pursue the debate further, but I ask the Minister two questions. First, does Section 85 of the Equality Act 2010, which lays responsibility on maintained schools to accept this legislation and to deal with the issues that I have raised, still stand? In particular, what will happen about Section 87, which specifically excludes independent schools? Where will academies lie? Will they lie with the maintained schools, from which they are mostly converted, or will they go into the independent schools which were, in my view, curiously, exempted from that legislation? Secondly, will the Minister say whether, in the general provision of legislative requirements, the independent schools, which were again left out of the overall principles of the equality legislation, will in future be separated and exempted? Where will the academies lie? In view of the lateness of the hour, I will not pursue the matter further. I should be most grateful if the Minister could address these two questions. I beg to move.

My Lords, I am happy to confirm that this Government, like the previous Government, accept that academy schools are public authorities for the purposes of the Human Rights Act and that, consequently, they are under a duty to act compatibly with the convention rights in their dealings with parents, pupils and others. The Act does not spell out or list all possible public authorities. This is for an obvious reason: some private bodies also carry out limited public functions and, for the purposes of those public functions, they are also public authorities, but only in respect of those functions. It is not possible to identify all of them at all times. Nevertheless, when they are providing a public service—schooling—they are clearly public authorities.

The noble Baroness will know that academies will be required to comply with all the duties in the Equality Act that apply to schools more generally with respect to disability, non-discrimination, reasonable adjustments and the like. It is quite correct that academies are not currently listed in Schedule 19. However, Schedule 19 will be updated before the duties come into force in 2011, and academies will be included in time for that. This will also deal with the suggestion in Amendment 81 that an academy should be a public authority for the purpose of the Equality Act. I regret that I do not have immediate information on the inclusion of independent schools. I hope that the noble Baroness will allow us to write to her on that issue.

Amendment 81 withdrawn.

Amendments 82 to 85 not moved.

Clause 1, as amended, agreed.

Clause 2 : Payments under Academy agreements

Amendments 86 and 87 not moved.

Amendment 88

Moved by

88: Clause 2, page 2, line 22, leave out paragraphs (a) and (b) and insert—

“(a) for at least three years, and(b) terminable by the Secretary of State giving one year’s written notice”

My Lords, the amendments in this group are probing amendments to understand why the Government have chosen the period of seven years for the academy agreement, not six years or eight years, to understand what evidence they have chosen to support that choice and to probe the direction that the agreement flows in. If a new academy is formed through an academy order and a funding agreement for seven years is established, how can such an institution, if it wishes, revert to the maintained sector? Is it a one-way street or a two-way street? What are the safeguards to ensure that an institution is not stuck as an academy if it wants to come back? I hope that the Minister will be able to furnish us with the evidence on this matter. I beg to move.

My Lords, I will speak to Amendments 108 and 178 in my name and that of my noble friends Lady Walmsley and Lady Garden. I need not detain the Committee long at this time of night.

Amendment 108 is slightly different in that it concerns the application to convert to academy status, and is very much probing. At the moment, there is no provision in the Bill to withdraw an application once it has been made. Will the Secretary of State allow a maintained school to withdraw an application, and what will be the latest time by which a school can withdraw it? Presumably there will be some point of no return prior to the conversion date or the date on which the academy order is issued, which is the date that allows the school to convert to an academy and therefore to negotiate a funding agreement.

Amendment 178 proposes one of a permutation of clauses—or, rather, it proposes the same clause with a permutation of times in it—and proposes that an academy, once established as an academy, can revert to becoming a maintained school. Its purpose is really to provide a mechanism for the school to revert to maintained status.

It might be of interest to the Committee if I note that the seven-year rule in the Bill came from the Education Reform Act 1988 of the noble Lord, Lord Baker. The rule was originally five years, and Lady Blatch, whom many people in this House will remember, moved as a Back-Bencher that this should be changed to seven years on the grounds that any young person attending what was then a city technology college should be afforded the opportunity to complete a full seven years—the period of secondary education up to 18 years of age. The assumption was repeated by the Minister of the time, the noble Earl, Lord Arran, and it might be worth asking whether it continues to be the assumption that academies will provide sixth-form education. Certainly our primary schools and many of our special schools will not necessarily provide sixth-form education.

My Lords, my Amendment 179 is also in this group of amendments. As the noble Baroness, Lady Sharp, has mentioned, probably a number of us were sent them and we have used them in differing ways, but they are in fact extremely similar. My proposal is very much, as we argued in the first place, that if you have to go through a series of consultations before you take the specific step of applying properly to become an academy, the whole procedure of consulting the parents, the staff and everyone—the kitchen sink, as it were—to become an academy is the same as the procedure before you decide to come out of the process. All of that indicates the concern about the whole process. There are without doubt, as originally set out, a number of reasons why a school, having suddenly leapt to the idea that becoming an academy is definitely the way forward, might regret converting to one, so it should have the option of returning to maintained status if that is best for the education of its children.

I therefore join other noble Lords in what they have said about these amendments, and I hope the Minister will be able to satisfy us on these points.

My Lords, I have tabled Amendment 92 in this group. I cannot resist commenting on the fact that we have been in debate on the Bill for 20 hours and are still only on Clause 2. That says something about the drafting. My amendment covers a simple point. I suspect that the Minister will say that the amendment is unnecessary, but it makes clear that the seven years’ period of notice the Secretary of State can give under Clause 2(2) in relation to payments to an academy may be given at any time. It follows a well worn precedent in normal law of contract, but if he assures the Committee that it is superfluous, so be it.

My Lords, I make a brief intervention on the group of amendments concerned with reversion to maintained status. What I am looking for is clarification on the consequences, intended or unintended, of any of these amendments in the case of an academy that had formerly been a church school or a school of particular religious character. Is there a clear intention here that such academies should revert to that form of status, and if so, to what extent in any of these amendments is that intention secured? Moreover, in the provisions that require consultation, in the case of church schools should there not be explicit consultation with diocesan boards of education or their equivalents, for whom such a reversion would have resource implications?

My Lords, I start by thanking my noble friend Lady Sharp. She reminded us, in her clear exposition of the history behind the answer to the question put by the noble Baroness, Lady Morgan, about the period of seven years and where it came from. The previous Government followed it and we are doing the same.

In terms of the noble Lord’s approach going forward, I ask what evidence has been used to carry on with that timeframe. There is nothing in the impact assessment about timeframes and I would be interested to know what the evidence is.

My noble friend Lord Wallace says that the evidence is as good as the evidence the previous Government had. The answer to the question is that, over time, the period has shown itself to demonstrate stability for parents and children because it gives them some certainty. However, in terms of the impact assessment, I can give no better answer than the previous Government themselves had.

We think that reducing the period of notice required for termination would create greater uncertainty. We are not aware of evidence that suggests that a shorter notice period would provide a better solution. However—and this comes back to earlier discussions about the difference between the funding agreement and the grant arrangements—there may well be a case where a new school is created for providing a shorter period for the school to prove itself. That is the reason behind the proposed new grant arrangements. In such a case there would be greater flexibility to allow for more regular review of performance, and then once the school had established itself as what is called a free school, it would be possible, if both parties agree, to move on to the more conventional contractual funding agreement.

Furthermore, it is right that the academy itself is sure of this same stability to make long-term plans and that the Secretary of State, when committing to funding, is confident of the proprietors’ commitment to the academies programme. The amendments would add unfair uncertainty to the academies programme. On the question put by my noble friend Lord Phillips through Amendment 92, I am advised that it is already the case, as he says. The Bill gives no prescription about when the notice to terminate may be given.

Amendment 108 seeks to allow the governing body of any school which has applied for an academy order to withdraw the application at any time up to one week before the conversion date. Until the academy arrangements, including the funding agreement, have been signed by both the academy trust and the Secretary of State, the academy trust is free to withdraw its application for an academy order, even if the order has been made in respect of that school, and in theory that could be right up until just before conversion. An order merely permits the school to enter into an agreement with the Secretary of State; it does not require it. The decision by a school to enter into academy arrangements with the Secretary of State should be taken after due consideration. The academy trust will want to be confident of its decision when it signs the funding agreement or grant letter but, as I say, in theory that could be up until the point before conversion.

We do not expect that a school would want to withdraw its application at the last moment because that would cause uncertainty. However, if after signing the academy arrangements the governing body wished to withdraw its application, the Secretary of State would be able to assess the case on its merits and could set the agreement aside, with the consent of both parties, providing the local authority was still in a practical position to maintain the school.

Amendments 178, 179, 180, 181 and 182 all seek to give academies the power to revert to maintained school status after a shorter period of years. Again, these amendments would, in effect, overrule the requirement of seven years’ notice, which we have already discussed.

On the specific point about a school being able to convert back to maintained status, if an academy wished legally to become a maintained school again it would first need to terminate its academy agreement with the Secretary of State. To establish a new replacement maintained school, there would need to be either a new schools competition proposal by the local authority under Section 7 of the Education and Inspections Act 2006, or the local authority or other proposers of the new school would need to apply for the Secretary of State’s consent under Section 10 of the same Act to publish proposals for the new school outside the competition process. In both cases, a statutory process would need to be followed where the proposals are subject to local decision-making arrangements and to determination ultimately by the local authority or schools adjudicator. This is consistent with the process a trust school would have to follow if it wished to return to community school status.

As a shorthand, practical response to the questions about whether it is possible and how it could be done, given the freedoms that are inherent within the academies programme, any academy at any point could choose to run itself exactly like a maintained school if it wished. There is a legal process it could go through—although a fairly protracted and complex one, I do not dispute—which is clearly set out, but it could at any point choose to behave, should it want to, exactly like a maintained school. It could buy back services from the local authority and could voluntarily comply with any regulations which apply to maintained schools. From that point of view, it would feel, look and behave like a maintained school without any need for changing its status legally.

The basic point is that we expect all schools which apply to be confident in making the decision to become an academy and to be fully committed to it. That is in line with our overall approach of this being, effectively, permissive rather than coercive legislation. We are not seeking to stampede schools into conversion and we expect them to consider all these points carefully before their decision.

I hope that explanation provides factual answers to the questions raised and an explanation of the process. In the light of that, I urge noble Lords not to press their amendments.

I return to my question in the light of what the Minister has just said. I understood him to say that if a school of a particular religious character becomes an academy and then seeks to revert to maintained status, nothing within the process guarantees that that particular character will be continued and protected.

On the specific point the right reverend Prelate raised in the question he asked earlier, I can tell him that we shall come later to amendments in regard to religious schools and land issues. Perhaps I may write to him to clarify the precise point.

I thank the Minister for his remarks and for putting on record some very helpful information about moving in and out of academy status.

With regard to the seven-year timeframe, given the debates that we have had so far, the main difference between having an academy agreement and having a direct grant payment is the term. I am trying to understand what the Government see as so important about the seven years. Regarding the term of the grant letter, we were advised that the main difference there was the variation of the term. This is an important issue. If the coalition Government had simply carried on everything that we did when we were in government, we would be looking at a very different education Bill now—we would be looking at PSHE and guarantees around one-to-one tuition.

This is about understanding what the Government see as an appropriate term. If it is a new, experimental school that is being funded through a grant letter, then how long is enough—one month, two, three? Does it have to be a year or five years? At what point does it become a stable, going entity? I would be interested to know that, along with what evidence the Government are going to use. If they do not have evidence now, and I understand that there is an experiment unfolding around the free schools, it would be good to understand what criteria are going to be used to look at how well those new funding grants and the terms around them are performing.

I am grateful to the Minister for putting on record those helpful remarks about the transition to and from academy status, and I will read Hansard to understand the implications fully. For now, I beg leave to withdraw the amendment.

Amendment 88 withdrawn.

Amendments 89 to 97 not moved.

Clause 2 agreed.

Clause 3 : Application for Academy order

Amendments 98 to 104 not moved.

Amendment 105

Moved by

105: Clause 3, page 2, line 38, at end insert—

“( ) An application under subsection (1) shall be in such form and shall contain such particulars as may be prescribed in regulations.”

Again, this is about teasing out more from the coalition Government about the practicality of how applications should work and the kind of criteria that the Secretary of State will be using to make decisions about whether a school can become an academy. I am sure that these are matters that have all been thought through.

I would be interested to know whether the Government have considered putting much more detail in the Bill. When we had an academies programme that started off with numbers in the tens, the academy funding agreement and the intensive coaching approach that the Department for Children, Schools and Families adopted was very appropriate. Then we moved on to academies in their hundreds and the YPLA was established, and so on from there. We increased transparency around the standard funding agreements and so on.

Is the Minister considering publishing the criteria for decisions around academy applications? Is he also considering putting more in the Bill as we start to think about a whole system that could be made up of academies rather than a small number focusing on school improvement?

My Lords, I shall speak to Amendments 112, 118, 123, 126 and 187, in my name and those of my noble friends Lady Walmsley and Lady Garden. The key amendment among them is Amendment 123, which has two purposes. In the first place, it asks the Secretary of State to state the criteria for approving an academy order. This is both important and urgent. It is important because, as my noble friend the Minister has made clear, there remains a two-stage process for applications for state-maintained schools converting to academy status. First, they have to apply under the conditions set out in Clause 3 and, if approved, the Secretary of State, under Clause 4, issues an academy order. Once an academy order is issued, the school then has to begin negotiating an academy agreement or a funding agreement with the Secretary of State.

As I mentioned at Second Reading, the impact assessment suggests that only 200 schools a year will achieve academy status during the next three or four years. My noble friend the Minister made it clear that this was merely a guesstimate based on past experience. He has also told us that more than 1,700 schools, many of them judged outstanding by Ofsted, have expressed an interest in becoming academies. Even if you halve that, so that the number of applications received is 850, you have to ask whether all those which receive academy orders go on to negotiate academy agreements. The Secretary of State has indicated that all those judged outstanding by Ofsted will be able to proceed unless they are carrying a significant deficit on funding.

If this is so, the department will have to process many more than 200 schools, with not insignificant costs, not least because each school will receive a welcome present of some £25,000. Will all schools applying which have been judged outstanding automatically—unless they carry a large deficit—receive an academy order allowing them to proceed to negotiating a funding agreement? If not, what other criteria will be used to select those that are allowed to proceed? What about the schools judged good or satisfactory by Ofsted? They are also being encouraged to apply, albeit to a slower timetable. By what criteria will they be judged? Neither the Explanatory Notes nor the guidance to schools wishing to apply makes clear what criteria will be used to judge applicants. Amendment 123 would make the criteria public so that schools thinking of applying might be able to judge whether it is worth their while doing so.

The second aspect of the amendment is that it seeks to make it clear, where a school is under notice from its local authority under Section 30 of the School Standards and Framework Act 1998 or Sections 15 to 17 of the Education and Inspections Act 1996, that the local authority will cease to maintain the school. When GM status was introduced in the early 1990s, many schools sought it as a way of avoiding closure. How far is this likely to be considered by this Government? We face over the short term a very considerable drop in numbers at some secondary schools, especially those that deal just with the 11-to-16 age group, and closures and amalgamations are still very much on the cards. How far will they be allowed to use an application for academy status as an escape route from reorganisation?

Amendment 112 asks that, where a school is being converted to an academy because it is failing and not serving its community as well as it might, the decision is taken in conjunction with the governing body, and that, just as with other schools, the application is made by the governing body and not imposed on it.

Amendment 118 picks up the second issue raised in Amendment 123. This amendment was proposed to us by my honourable friend the Member for Bath, Mr Don Foster, and relates to school reorganisations. There were some instances where plans for a sixth-form reorganisation had been foiled by a key player opting out to become a grant-maintained school. The suggestion is that before a school opts out in this way an independent view should be sought on how it affects the provision of education within the community as a whole. Who better to provide such an independent view than the schools adjudicator, who has already had to look at the contentious admissions procedures? The proposal, therefore, is that when the conversion to an academy is contentious in a local community because of reorganisations, the schools adjudicator should be asked to look at the situation and the Secretary of State should have regard to his or her advice—not necessarily follow it, but have regard to it.

Finally, the purpose of Amendment 187 is to make it clear that the academy conversion process and the business of issuing orders and negotiating academy arrangements cannot be transferred to the YPLA. Section 77 of the Apprenticeships, Skills, Children and Learning Act 2009 makes it clear that the academy arrangements cannot be transferred to the YPLA—or the negotiation of academy arrangements cannot be so transferred. This amendment is just to clarify the situation and ensure that issuing academy orders is included within the term “academy arrangements”. Can my noble friend the Minister make clear that that is so and confirm that the role of the YPLA is an agency one to administer the arrangements and fund the academies once they have been set up?

My Lords, I speak to Amendment 112. Like the noble Baroness, I have some concerns about the way in which the power to which the amendment refers might be exercised—although, in my case, particularly with regard to church schools, which will come as no surprise. The principle issue relates to the power to intervene should schools standards not be up to scratch. Noble Lords will be aware that such challenge and intervention currently lies with local education authorities for church as for community schools. In our diocesan boards of education and our sister Roman Catholic dioceses and schools commissions, we have long been accustomed to work with them to address weaknesses.

We need to find ways in which to enable diocesan boards of education to be fully involved in identifying weakness and working with governing bodies in supporting improvements at an early stage prior to the exercise of the Secretary of State’s draconian powers as set out in the measure. With or without such a provision in the Bill, there is a further danger in the clause as it stands in that the powers that it confers could be used in respect of a school where standards were unsatisfactory to radically change the character of a school. By turning over responsibility for a school to other providers, the existing trustees could be bought out, the original intentions of a school of religious character overruled and a school of a particular character brought to an end.

The Secretary of State is, I believe, of the view that this would not be compatible with the provisions of the European Convention on Human Rights, but we are not at all sure about that since, as the Bill stands, it would appear that a school could be taken away from the church without the relevant church body—in our case, the diocesan boards of education—having had any opportunity, along with the governing body, or power to challenge or intervene at an earlier stage. We hope that some of these issues can be further explored before the matter returns to the House.

My Lords, this group of amendments deals with academy orders which enable the conversion of a maintained school into an academy. Amendments 105, 115 and 123 seek to place in regulations the process of applying for an academy order and to require the publishing of the criteria that the Secretary of State will take into account when approving academy order applications and entering into academy arrangements. As your Lordships might expect by now, we are unconvinced that it is necessary to prescribe in regulations the application process for an academy order, as this is an entirely administrative process. The Government have made it clear that they will apply a rigorous fit-and-proper-person test in approving any sponsors of an academy or promoter of a free school.

In response to one question raised by my noble friend Lady Sharp, I can confirm that the Secretary of State will publish on the department’s website criteria for deciding applications from schools which are not outstanding. I agree that it is important that people know where they stand. We will make sure that those are available when we have done some more work on that.

Can the Minister clarify whether that means that every school that is outstanding which applies will automatically get an academy order, unless it has a deficit of over £100,000?

No, my Lords; I was coming to that. There are some exceptional circumstances where that would not necessarily happen. There may, for instance, be cases where further information or action is required, including where a school is subject to existing reorganisation proposals—such as those referred to in Amendment 123—and where, as my noble friend has said, the school has a deficit or its performance has changed significantly. The Secretary of State has that power and would want to review each case on its merits. There will need to be flexibility in the Secretary of State’s consideration of these factors to make sure that he can make the most appropriate decision in each individual case. Information on those exceptional circumstances is, I believe, available on the department’s website.

In a similar vein, Amendment 126 would require the Secretary of State to make an order through secondary legislation specifying the mandatory contents of an academy order. While each order will inevitably contain certain standard elements, each will be different and specific to each school depending on the circumstances of each case. I think that we touched on this briefly last week. The parliamentary Delegated Powers Committee report on this Bill, dated 17 June, concluded that it would not be necessary for Parliament to scrutinise academy orders, while the expectation is that the academy orders will be brief. Therefore, it is not our view that we need to set out in an order what those orders will contain.

Amendment 118 seeks to require the Secretary of State to seek the advice of the schools adjudicator before agreeing the conversion of a school from maintained to academy status. The local authority normally would decide proposals for changes to existing maintained school provision, including closures, alterations and new schools. Where the local authority itself is the proposer of a new school, the schools adjudicator may be called upon to decide the competition. The decision on academies has, however, always been the Secretary of State’s. Given that the process for converting to academy status will not result in a net change in provision available to parents and pupils in the area, we do not believe that involving the schools adjudicator would be necessary. It might, indeed, introduce another unnecessary layer of bureaucracy.

On the point raised by my noble friend Lady Sharp on Amendment 187, the Secretary of State does not intend to delegate to the Young People’s Learning Agency any decisions about, or the making of, academy orders. I can confirm that he has no intention of delegating this function, which goes hand in hand with the decision to enter into academy arrangements themselves and which he cannot delegate to the YPLA. Academy orders are made in respect of maintained schools; therefore it is not appropriate to delegate it to the YPLA, which is responsible for certain roles—funding, challenging and supporting academies—once they are up and running, but not before.

Finally, Amendment 112 would remove the power of the Secretary of State to make an academy order for a school that is eligible for intervention. Generally speaking, schools are eligible for intervention where standards are too low or there are concerns about performance standards. It is crucial that schools that are failing their pupils can be given the opportunity to convert to academy status and to do so quickly to improve their pupils’ chances. There is evidence that schools obtaining academy status can make improvements to raise standards for all their pupils. It is right to make sure that those schools have that opportunity, too. Removing that option would not be in the best interests of pupils. I hope this has provided some more information and factual answers on several of the points that have been raised. With that, I hope that the noble Baroness will withdraw her amendment.

My Lords, given that the hour is so late and the complexity and importance of the information that the Minister has just shared with us, I will want to read Hansard and think about it. One of my concerns relates slightly to the FOI amendment that is coming later. I am concerned about transparency. The coalition Government have said time and again that there is a strong commitment to transparency. We are dependent on a host of information being posted on the department’s website but, given the number of websites being culled at the moment, I am slightly anxious about it. So I want to think about what the Minister has said this evening. I beg leave to withdraw the amendment.

Amendment 105 withdrawn.

Amendments 106 to 108 not moved.

Clause 3 agreed.

Clause 4 : Academy orders

Amendments 109 to 127 not moved.

Clause 4 agreed.

Amendment 128

Moved by

128: After Clause 4, insert the following new Clause—

“Community facilities

(1) An Academy order must include provisions which make available for community use some or all of the school’s facilities.

(2) Such provisions shall not be fewer and on less advantageous terms than those which have been available prior to the application being made for an Academy order.

(3) Such provisions may be made by means of a contract or contracts with a local authority or other non-profit making or commercial body.

(4) “Local authority” in this section means a county, district, unitary or parish council.”

My Lords, Amendment 128 stands on its own. It appears to be obligatory for everyone who now speaks to refer to the lateness of the hour. All I can say is, with 10 groups still to go, we ain’t seen nothing yet.

Amendment 128 is clearly a Committee stage probing amendment. It returns to the question of the relationship between the school and its surrounding community, which featured in amendments to which I spoke last week. This is about community facilities that are provided by the school. There has been much pressure on schools for a long time to share their facilities with the wider community. It is something that has been increasing slowly because it is not easy for a school, administratively, to do this; it is not easy to arrange. However, some schools have for a long time provided educational facilities or the accommodation for such facilities in their buildings. More often, the use of sports facilities, such as sport halls, tennis courts, pitches and so on, is provided. I think that many of the new Building Schools for the Future schools have had built into their funding agreements the provision of facilities for the wider community. They are an important part of the place of a school within its community.

Amendment 128 suggests, first, that academies, wherever and whoever they are, should, as part of their agreement, make a commitment to providing at least some of their facilities for the wider community. That should be built into the agreement so that academies cannot walk away from it. Secondly, the facilities available should not be less overall than they were before the school became an academy. Preferably, they should be better. The position should not get worse for the wider community. Thirdly, the amendment draws attention to the way in which schools often come to arrangements with local authorities of various kinds—from the county council down to the parish council—to do this jointly. In many cases, what appears to be a simple facility, such as a children’s play area, can be more complex. The children’s play area might be provided by the parish council or the district council but is on county council—that is, school—land, which would transfer to the academy under these arrangements. The use of those recreational facilities needs to be continued. The amendment highlights all those issues and I look forward to the Minister’s reply. I beg to move.

My Lords, I have some sympathy with this amendment. Certainly, as regards independent schools, under the Charities Act a great deal of sharing of facilities is required. That is extremely effective. Academies will be very much in the same position. It would be interesting to know how this will work for them.

My Lords, I thank my noble friend Lord Greaves for his probing amendment and I am happy to provide the assurances that he seeks. Perhaps I may mention that the new Titus Salt School, the site of which he will know very well, has built a car park for its staff that is available for people who use Roberts Park at weekends. The noble Lord will know exactly where I am talking about.

The model funding agreement requires academies to be at the heart of their communities and to share their facilities with other schools and the wider community—for example, by making their sports facilities available for local groups to use. That will remain a requirement on academies. We therefore entirely agree with my noble friend that it is important for a school to be at the heart of its community and that it should, as far as possible, encourage the community to make use of school facilities in the evenings and at weekends. The place to impose obligations on an academy is through the academy arrangements—either the funding agreement or the terms and conditions of grant. We therefore resist the imposition of this in the Bill but entirely sympathise with the intentions of the amendment.

My Lords, I thank my noble friend for that encouraging response and for the fact that it will now be in Hansard if nowhere else, which at least can be quoted back at the Government if it turns out that in some cases schools are trying to renege on these matters. Perhaps I may add that, yes, I know Roberts Park. I think that I was five years of age when I was sat in a thunderstorm in a shelter in Roberts Park and I began to contract the symptoms of measles. I remember it very well indeed. I am not quite sure what that has to do with academies, but it is certainly to do with Roberts Park and me. I beg leave to withdraw the amendment.

Amendment 128 withdrawn.

Clause 5 : Effect of Academy order

Amendments 129 to 137 not moved.

Clause 5 agreed.

Amendments 138 and 139 not moved.

Clause 6 : Transfer of school surpluses

Amendments 140 to 158 not moved.

Clause 6 agreed.

Amendment 159 not moved.

Clause 7 : Transfer of other property

Amendment 160

Moved by

160: Clause 7, page 6, line 11, at end insert—

“( ) The Secretary of State before making a property transfer scheme shall consult with—

(a) the local authority;(b) the current owner, if not the local authority; and(c) any other such persons as the Secretary of State considers appropriate.”

My Lords, the amendment is in my name and that of my noble friends Lady Walmsley and Lady Garden. Clause 7 applies not to land but to items such as electronic hardware and software, furniture and cleaning or catering contracts. It permits the Secretary of State to make a property transfer scheme, which, in effect, transfers to the academy various property and contractual rights and liabilities that previously belonged to the local authority or, through it, the maintained school that the academy is replacing. As it stands, the clause makes no mention of any consultation with the owner of the property—whether it is the local authority or otherwise—or with people such as the catering contractors who might be affected by such a transfer. It seems natural justice that they should be consulted and the purpose of the amendment is to ensure that they are consulted. Will my noble friend also explain what subsection (6)(a) means? What sort of property rights,

“could not otherwise be transferred”?

I beg to move.

My Lords, I have been asked to speak to Amendments 171 to 174 in the name of my noble and right reverend friend the Bishop of Lincoln, who cannot be in his place today due to commitments in his diocese—although I dare say that his commitments will be over rather sooner than yours and mine.

I should like to speak to these amendments as a group because they relate to complications that could arise from the Secretary of State’s powers to compulsorily purchase the site of an existing church school as part of the academy formation process. The amendments are technical and are being put forward because of the extraordinary complications in respect of the ownership provisions of many voluntary schools sites—again, predominantly those held in trust by Church of England bodies.

As I am sure all noble Lords will know, the School Sites Acts of Queen Victoria are still in force and contain a technicality called a “reverter”. It is our view that reverters will be likely to apply to at least some sites dealt with under the provisions of this Bill and that in consequence the rights of the heirs of original donors will come into force if and when the school site is purchased by the state. Thus, the closure of a school in order for it to reopen as an academy may trigger reverter conditions, enabling the trustees to reclaim the land. Likewise, the original donation of the land in trust probably had conditions attached such as its use for church schooling only. In this respect, we do not think that the Government have taken into account the effects of the Schools Sites Act 1841 and of the Reverter of Sites Act 1987. Many of our school sites can be regarded as being part of the church’s historical assets and every effort needs to be made through discussion with the diocese and trustees to ensure that the transition is both smooth and a legitimate handing on of the asset in trust.

These are therefore probing amendments through which I hope to draw out the Minister to clarify the Government’s thinking on this arcane subject. They seek to protect trustees and heirs from the complications that might ensue and to protect the Government from a nasty and expensive legal trap if the issue is not clarified and addressed now.

My Lords, the amendments in this group deal with the transfer of school property to the successor academy. Amendment 160 deals with the transfer of property other than land. In response to the question from my noble friend Lady Sharp, that means things such as desks, computers and so on. The amendment would impose a requirement to consult the local authority, and possibly others, before the property may be transferred. In the case of converting academies, the clear intention is that there should be a smooth transfer between the existing school and the academy, as part of which the school would need to be able to continue to use its property, including things such as desks, computers and so on—property other than land. I am conscious that we have discussed the question of consultation in other contexts and I have said to the Committee that I will reflect further and come back to it. I am aware that views on consultation differ, but I will bear in mind my noble friend’s points as part of my reflection.

The amendments spoken to by the right reverend Prelate the Bishop of Exeter are, as he says, extremely technical and complex, particularly as they concern the Reverter of Sites Act. Perhaps it would be acceptable to him if, for the convenience of the Committee, I were to write to him at length on those points and place the letter carefully in the Library. I understand the significance of these issues to the church and do not want to rush them, get them wrong or end up, as he says, with an expensive lawsuit. I am advised that we have some answers to the points. Perhaps I may write to the right reverend Prelate and circulate the letter widely. When he receives that letter, if there are specific circumstances that the church authorities have in mind and about which they are still concerned, I would be happy to consider the matter further if he or others contact me. If he and the rest of the Committee agree to that proposal, perhaps he will refrain from pressing his amendments and my noble friend Baroness Sharp will withdraw hers.

I am grateful to the Minister and am glad that he is going to think about this. It seems to be natural justice that there should be some consultation with the owners of the property concerned. In the light of that, I beg leave to withdraw the amendment.

Amendment 160 withdrawn.

Clause 7 agreed.

Amendment 160A

Moved by

160A: After Clause 7, insert the following new Clause—

“Powers and duties of local authorities: oversight and monitoring of Academies

(1) The Secretary of State may by order appoint a local authority as the body responsible for the oversight and monitoring of Academies in its area or part of its area.

(2) An order under subsection (1) may be made for all Academies in the area of a local authority or for one or more types of Academies.

(3) Such an order must be made if the number of Academies of a particular type in the area of a local authority is at least ten or twenty five per-cent of the total, whichever is the smaller, unless the Secretary of State considers after consultation with a local authority that there are special circumstances that make such an order impractical in that particular case.

(4) The Secretary of State may make regulations concerning the operation of the powers and duties of local authorities under this section.

(5) An order made under subsection (2) and regulations made under subsection (4) are subject to annulment in pursuance of a resolution of either House of Parliament.”

My Lords, I shall speak also to Amendment 160B in this group. The two amendments cover important and fundamental issues that it is probably too late to discuss in detail: however, they are still fundamental and important. I do not claim that these are perfectly honed amendments that could go into legislation: they are an attempt to set down principles and issues that are important. They probably indicate my lack of detailed knowledge of education legislation. Nevertheless, the two issues are clear, and these are probing and speculative amendments about them.

The first amendment refers to the powers and duties of local authorities in relation to the oversight and monitoring of academies and clearly suggests a role for them in intervention in, and challenge of, underperforming academies. It does not propose any change to the basic powers and freedoms of academies. It suggests that, over a period, the role of supervision and oversight of academies should transfer from a national body—from the Young People’s Learning Agency or whatever other national body the Government of the time decide to use—to local authorities.

If there are a few hundred academies, having this role in the hands of a national body will be feasible and practical and will probably work. However, the more academies there are, the more the creation of a large national bureaucracy to carry out this work will become unrealistic and impractical. If there are 5,000 or 6,000 academies, then it will not seem sensible for one national body to be responsible for oversight, and it certainly will not fit into the Government’s mantra of localism. One might say that it is an old-fashioned state socialist way of doing things, but I do not want to get under the skin of the Labour Party too much, so I say that very gently.

My proposal also fits in with the remaining residual local authority roles in relation to pupils who are, or have been, attending academies. In this Committee we have been discussing roles relating to transport, special needs, excluded pupils and so on. There is clearly a residual local authority role in relation to academies or in relation to pupils attending academies, and it would be sensible if there were not two different bureaucracies dealing with the same schools.

Clearly, we are talking about light-touch oversight. As I said, I am not talking about in any way changing the status or freedoms of academies. However, it seems to me that if oversight is put into the hands of bodies which are closer to the academies, are more local and are more likely to have close relations with them for all sorts of reasons, they will have the knowledge and close links that will make it much easier for them to intervene effectively if and when things go wrong in a school. If and when that happens in an academy, there will have to be outside intervention—we all understand and accept that—but how much easier it will be if this is done by people who already have close working relationships and links with those schools rather than by people charging down perhaps several hundreds miles from Whitehall. Alternatively, the YPLA, or whatever other agency is involved, might have to set up local or regional branches to do this work. There will then be a risk that local authorities will, in a sense, be duplicated by the regional and local branches of the national agency. As I understand it, that is exactly what this Government are trying to avoid. Certainly they seem to be taking an axe to quite a lot of the existing regional bureaucracies—something that I shall not complain about too much—but it seems to me that setting up new ones would be the wrong direction in which to go.

I am not suggesting that the detailed mechanisms in Amendment 160A are the right ones. I am not necessarily arguing for them; I am putting them on the table for a discussion about the way in which it would be sensible to move as more and more academies are created over the next few years, if that is indeed what happens.

Amendment 160B is rather different. It would put local authorities in the driving seat in the process of converting existing schools into academies. This is a probing amendment to ask the Government some fundamental questions. First, what are their ultimate objectives in converting schools into academies? What is their strategy? What do they think the position will be in five or 10 years’ time? Do they expect that ultimately all or most schools will convert to academies—perhaps all schools except those in need of intervention in terms of special or other measures? Is that their ambition?

Several times, the Minister said that the Government want to give all schools the opportunity to apply to be academies. That implies that they want all schools to become academies eventually. If that is their position, we are moving towards a situation in which the local management of schools, which took place in 1988 and subsequently, will be taken to its more logical conclusion and all schools will be given a substantial degree of independence. Any relationship that they have with the local authority will be turned upside down and schools will decide whether to pay for local authority services, rather than having some services provided automatically.

The noble Baroness, Lady Morris of Yardley, said in a powerful speech at Second Reading that this is the latest in a series of initiatives to make a special category of schools. She referred to technology colleges, grant maintained schools and so on. So far, all those initiatives have resulted in a minority of schools getting special status. Is this the same thing again: that a minority of schools will become academies and that all the rest will continue as usual? Do the Government think that that will happen, after a period of years, or do they envisage every school becoming an academy? I do not think that the Government have made that clear at all and I do not know whether they have a clear idea. I suspect that Michael Gove has a clear idea about it, but I am not sure whether the Government collectively have. That is a fundamental question and it is one reason for tabling this amendment.

The Government are cutting local authorities out of the process of the creation of academies. That will result in a lot of resistance from local authorities, which will attempt to persuade many schools not to become academies. The same will apply to diocesan authorities. The alternative is to put local authorities in the driving seat, letting them supervise, organise and attempt to get some order and sense into the conversion process in their areas.

In Committee, we have talked a little about the transitional period during which an authority might have half of its schools as academies and the other half which it will still have to look after. Perhaps the latter will eventually be a minority, a rump of schools, which inevitably will be the less successful schools, or perhaps the mediocre, satisfactory schools. It is not clear whether the process will work in an efficient and economical way. During this transitional period, it will cost local authorities more money as they will have to provide all the services, but for fewer schools. I believe that putting local authorities in charge of the process will mean that they will be able to manage the whole thing more efficiently and economically. If you give local authorities a job, they will become enthusiastic about it; they will do it; and I believe that you will end up with more academies in a more sensible, organised way than by doing this nationally and trying to lock local authorities out of the process, as that will result in tensions, difficulties, inefficiencies and extra costs.

The wording of these amendments is not necessarily the answer, but these fundamental issues have to be faced, even at this time of night. I believe that the Government are missing a huge opportunity if they do not use local authorities more fundamentally in their ambitious programme to convert schools into academies. I beg to move.

I am grateful to my noble friend Lord Greaves. I listened to his comments with care and he made some extremely interesting points about oversight. I agree that one has to keep that under review as the situation develops. It goes to the heart of the question about the future role of local authorities, which we have touched on previously in Committee. I recognise that the coalition Government have not yet come up with a complete or satisfactory answer on what it should be, other than saying that we are clear that local authorities should have a strong strategic role.

The issue of it being a revolving picture is related fundamentally to my noble friend’s Amendment 160B. Perhaps I may answer his question directly by reference to Baldrick in “Blackadder”: I do not have a cunning plan around how many schools are likely to convert. I know that my noble friend may find that hard to believe, but it is true that our approach to the legislation is to say to schools that they have the opportunity: it is a choice rather than a compulsion. We do not have a clear view of the landscape in five years’ time because the shape of that landscape will be determined by the response to this permissive legislation.

We see this as being an opportunity that we want to give to schools rather than requiring them, or a local authority acting on their behalf, to convert or plan for conversion. Linked with that is the desire to be able to seek academy status quickly. It may indeed be that over time local authorities will develop a new role more akin to commissioning. I think that was the thought behind my noble friend’s amendment and the 2005 White Paper laid out thoughts on how the role of local authorities might develop. As the department and the Government more generally reflect on the proper role of local authorities and how to work with them—

I have been listening carefully to the Minister. If the Government do not have a vision for the role of local authorities going forward, would it not be a better idea to take this legislation at a more reflective pace so that people can engage with the coalition Government more proactively and in a considered way? Why are we rushing this? If the noble Lord does not have a picture or an answer, why are we here at 11 pm instead of having more time to think more carefully about the matter and have a proper debate? I do not understand what the rush is.

This relates to a debate I had earlier with the noble Baroness, Lady Royall, who asked: why the rush? Our answer to that question is that we know there are schools which appear to be keen to convert and to take advantage of academy freedoms. Our instinct is that, given that information and given the choice between going slow and cracking on with it, and providing answers about the strategic role of local authorities going forward, as I fully accept we must, we incline to the latter view.

I fully recognise the experience of my noble friend Lord Greaves in the proper role of local authorities. I hope that he will contribute to our deliberations on these matters. He said that these amendments are meant to illustrate a point rather than being particularly prescriptive in their intent. I have listened to what he said and will continue to reflect on it. I hope that in the light of that he may feel able to withdraw his amendment.

My Lords, I am grateful to the Minister for the honesty in his considered reply. I am a little alarmed by the idea that Baldrick may be in charge of government education policy, but I do not think that he quite said that. If I cite him correctly, he said: “We have not come up with a clear answer to the role of local authorities”. The more that we have considered the Bill, the more obvious it has been to me—this point was made by some of my noble friends—that it would have been a good idea for it to have had pre-legislative scrutiny to try to bottom out some of these issues and at least to present us with some considered alternatives on these important matters.

The future role of local authorities in relation to schools is vital. Clearly, a few hundreds of academies can be created without, in most areas, severely affecting the role of local authorities, but not once it gets into the thousands. I think that there are about 20,000 schools in England. If 5,000 or 6,000 of them, a quarter of them, converted to academies, which is clearly possible under the criteria that the Government propose, during the next four or five years, that would have a severe effect on the viability of local authorities—at least in some areas, because their creation would tend to be geographically patchy.

I believe that we are to get a schools Bill or an education Bill which will be a bit fatter than this Bill later this year. If so, this issue should certainly be returned to at that time, if not before. I am grateful to the Minister for saying that he will reflect on the matter. Finally, the answer to the noble Baroness, Lady Morgan of Drefelin, as to why we are rushing this, is that we have a Secretary of State in a hurry. That is not necessarily a bad thing, but if it results in bad legislation with all sorts of unintended consequences, we will have to sort them out in due course.

Before the noble Lord withdraws his amendment—which I expect he will do rather than test the opinion of the Committee on the matter at this time of night—does he have a view on what is the tipping point? If he does not, perhaps he would like to ask his noble friend what he thinks the tipping point is before a local authority becomes unviable.

That is the $64,000 question, or perhaps more than that at present exchange rates. I do not know. We will all have a view on that. It will depend on how big or small the local authority is. A big local authority, such as Lancashire, could probably survive quite a lot of its schools becoming academies, because it would still have a critical mass, but if a small local authority—a small London borough that has only a few schools—is left with just two or three primary schools, it will be in serious trouble.

Is the point not round the other way? If the cumulative impact of a lot of independent academies in an LEA area is to render problems for the education system, what happens if the LEA no longer has any intervention powers? How is the public interest in a community to be upheld?

I am beginning to feel like the Minister, the way that I am being cross-questioned by the Labour Party. I am not a Minister; I am not a member of the Government. My first amendment faces exactly the problems that the noble Lord just raised. They are serious problems. The answer has to be properly thought out. It may take longer than this Bill to think about, but it ought not to take very much longer. Having said that, I have said more than enough tonight and I beg leave to withdraw the amendment.

Amendment 160A withdrawn.

Amendment 160B not moved.

Clause 8: Charitable status of Academy proprietors etc

Amendment 161

Moved by

161: Clause 8, page 6, line 14, leave out “proprietor” and insert “operator”

I shall speak also to Amendment 167. Amendment 161 is jointly in the name of my noble friend Lady Walmsley, and Amendment 167 is jointly in the names of my noble friends Lady Walmsley and Lady Williams of Crosby, and the noble Baroness, Lady Howe of Idlicote.

As my noble friend the Minister referred to Baldrick, I think that he will sympathise if I say that Clause 8 could have been drafted by Monty Python himself. It is a dog’s dinner. Quite why we have to have this new definition of “academy proprietors” when the first five clauses make no reference to academy proprietors and they make only a desultory appearance in Clause 6 and a latter-day appearance in Clause 7, I do not quite know. It does not seem to me to be worth its presence in the Bill, which is complicated enough already.

I shall briefly deal with Amendment 161. I am a little shy about proposing it at 11 o’clock at night, but I shall nevertheless do so briefly. The use of the word “proprietor” is unhappy, given that all these academies can only be charities and that the word “proprietor” has an almost aggressively private ring about it, a ring of ownership. If you look up the definition, all its resonances and ring are about personal, private ownership. I am not expecting the Minister to make any concession on this tonight, but if he reflects on this and thinks that the word “operator” would be more in tune with the culture of the Bill, so much the better. The language of Bills can often be quite important in the way they are understood by the public afterwards.

I turn to the heart of this group: Amendment 167. It deletes subsection (4) of Clause 8 which states that all academy proprietors—to use the language of the clause—shall be exempt charities. I know that my noble friend Lord Hodgson of Astley Abbotts will argue in the next group along the lines that I now do—it is nice to be in harness with him again and to see the noble Lord, Lord Bassam, o’er yonder because we battled it out for a year over the Charities Bill in 2006. The question of who regulates this new breed of schools is vital. I am entirely happy that the Bill makes clear that all these academies are to be charities—indeed I would have been frantic if it had not.

However, as we in this House know only too well, charities are both highly privileged entities in the national legal fauna and have very considerable tax and other advantages over any other sort of legal animal. Because of that and their ancient nature, and because they are at the heart of civic society and our wonderful voluntary movement, they need to be and, indeed, are specially regulated. It is also fair to say that the law of charity is very particular and complex and requires more judgment on the part of those who apply it than most other parts of our law. It is no accident that the Charity Commission was established in the first half of the 19th century and has maintained to this day its pre-eminent—indeed, almost absolutist—role with regard to the oversight of charity activity and, starting at the beginning, of charity registration.

Therefore, it was with some alarm that I read the Bill and saw that academies were to be exempt charities because, as many Members of your Lordships' House will know, that means that they are taken out of Charity Commission regulation. It is particularly odd on two grounds. First, schools and other educational establishments used to be regulated by what was then called the Department for Education and Science, but that special possession was taken from it and put back into the responsibility of the Charity Commission many years ago.

The second oddity is that existing academies are subject to the regulation of the Charity Commission. I understand that there was a little brouhaha when at first it was suggested that the regulation should not be with the Charity Commission, but that was overcome and the academies remain subject to the oversight and regulation of the Charity Commission. It is worth pointing out that the DCSF, in its guidance to academy schools which it issued less than a year ago, makes very plain why the Charity Commission rather than anyone else is to regulate them. The reason is principally to ensure that academies that are charities must remain charities with the essential attribute of charitable status, which is independence, above all things.

Although the Government will rightly claim that one of the great virtues of the new wave of academies is to be more independent—I do not for a minute suggest that my noble friend the Minister has any other thoughts in his mind—sometimes things can occur that are not intended when one is legislating, and we must be absolutely sure that the independence of new academies, over and against local education authorities for example, is not replaced by subservience to the Government of the day. That is the principal benefaction, if I can use that word, of charitable status, which is why the Charity Commission goes to great lengths to ensure that academy schools are properly independent of government.

The Government say in their guidance that the agreement must be reached after,

“arm’s-length negotiations with the governmental authority”,

and that the trustees of an academy school must not,

“commit themselves simply to giving effect to the policies and wishes of the governmental authority”.

Finally, the trustees cannot agree to allow the governmental authority,

“to decide who is to benefit and in what way … However … it is possible for trustees to accept funding from a governmental authority on terms that are quite prescriptive”.

That gives you a flavour of this long document.

My amendment, which is supported by my noble friends, would bring the regulation back into the hands of the Charity Commission. I do not seek that for any other reason than that it has the experience and expertise to do this job not only better than any other regulating authority but, dare I say it, with less bureaucratic stumbling than might be the case if the regulation were moved to—what is it called these days? Is it still the DCSF?

I am sorry. I have got the abbreviation wrong. I am well behind. On utilitarian grounds, and on the grounds of the most effective regulation, the Charity Commission should not be ousted in the way it is in subsection (4).

I also need to say this. The Charity Commission could not take on the role of regulating the new academies unless it was given more staff—it is currently losing nearly 60 staff. Whoever is given the task of regulation will have to have the necessary staff, and any regulating hand will have to have more staff than the Charity Commission, because the Charity Commission has resort to a huge reservoir of experience, expertise and assistance. Noble Lords may ask who will regulate. That is the problem. The Government say that the Charity Commission is not the regulator, but there is nothing in the Bill about who they wish to be the regulator.

Let us concede for the minute that they insist on a different regulator, although I hope the Minister will have second thoughts about that. There are very few examples of other principal regulators. Most of our big national museums are regulated by DCMS, while Kew Gardens is regulated by Defra. Some of the universities are regulated by HEFCE, and some housing associations have a separate principal regulator. There has to be a principal regulator, and if I may say, the principal regulator in the case of the universities has delegated much of its regulatory function to the Charity Commission under a memorandum of understanding. So it all gets a bit confusing and, I would say, wasteful.

I end by saying that, whatever else, we must have the name of regulator on the face of such an important Bill as this. It is not enough for the Government to use their powers to appoint a principal regulator by secondary legislation. We all know how futile are the powers of this and the other place in relation to secondary legislation. We ought at least to have the possibility of commenting on the appropriateness and quality of the principal regulator the Government have in mind in order to assist them.

Finally, why on earth are the Government doing this? I hope it is not because they want to whip these academies through without the careful initial oversight of the arrangements, particularly of the new academies, that the Charity Commission could and will provide. I hope that the Government are not hoping that this will rush things through. If that is the case, they could repent at leisure. I beg to move.

My Lords, I have two amendments that address many of the points made by my noble friend Lord Phillips, although they approach them from a different angle. Given the lateness of the hour, it might be for the convenience of the Committee if I speak to them now so that the Minister can deal with the various arguments. I apologise for not having participated in the debates before, although I have read in particular the Second Reading debate carefully. As we are discussing charitable matters, I should declare my interests as president of the National Council of Voluntary Organisations and chairman of the Armed Forces Charities Advisory Company, inelegantly known as AFCAC.

The most important of my amendments is Amendment 164. It would remove the words “is a charity” and replace them with the phrase,

“may be deemed to be an exempt charity if and in so far as it is a charity”.

I am not quite as concerned as my noble friend Lord Phillips about the use of exempt status, but I am concerned about the way in which the charitable status and arrangements are being drawn in this Bill. I do not oppose the principles of the Bill; indeed, I support them, because I am for aspiration in our education system and it seems to me that this Bill will lead to higher aspirations. However, Clause 8 causes me some concern. This is a probing amendment, about which I am much looking forward to hearing from my noble friend on the Front Bench.

I shall take a moment to say a word about the background. The Charities Act 2006, which was a Lords starter like the Academies Bill, went through a high degree of scrutiny, not only pre-legislative scrutiny but also because the parliamentary examination took place twice over. We had reached the end of the process when we came to the wash-up before the 2005 election, when our progress resembled the childhood game of snakes and ladders—we had reached square 99 but then stepped on a very long snake and went all the way back down to square two, from where we had to start again. I had the privilege of serving my party on the Front Bench and, as my noble friend Lord Phillips said, we spent many happy hours with the noble Lord, Lord Bassam of Brighton, and others dealing with the issues in that Bill. The result of what some might say was an inordinately long gestation was that we had a huge amount of input from the sector and the wider public. I must say that the then Labour Government were prepared to listen and I think that we made some sensible changes. I think that the sector believes that a delicate balance that reconciles the many strongly held views about the charitable sector and its position in our society was achieved. This Bill, if unamended, will damage that delicate balance.

What is the balance? First, the Bill reintroduces presumption by the back door. The Charitable Uses Act 1601 stated that there was a presumption of charitable status for three purposes: the relief of poverty, the advancement of religion and, of relevance to us tonight, the advancement of education. Therefore, if you checked into the Charity Commission with the Hodgson educational trust, it would be bound to give you charitable status. However, it became perfectly clear in recent years that that no longer held water in our society and that we therefore needed to find a way in which all applicants for charitable status, with the benefits described by my noble friend Lord Phillips, had to show that they afforded an appropriate level of benefit to the public to offset the tax and other benefits that they received. So we achieved a level playing field.

This public benefit test was to be achieved by the Charity Commission and we wanted to make sure that the commission was insulated from political pressure from all sides of the House. Therefore, written into Clause 6 of the Charities Bill were words to the effect that the Charity Commission should not be subject to the direction of any government agency or any Minister of the Crown. We had a level playing field with an independent regulator.

The Bill as drafted blows a hole in this because Clause 8(1) states:

“A qualifying Academy proprietor is a charity”.

That restores presumption. There is no mention of a public benefit test; it just states that it is a charity. Therefore, we no longer have a level playing field. Above all, we are introducing an unlevel playing field in an area of great controversy. It was on education that some of the most difficult discussions and debates in this House took place because of the existence of fee-paying schools that are charities. Indeed, several schools have had their charitable status called into question or, in certain instances, revoked.

The second worry is that this undermines the authority of the Charity Commission and damages its independence. We went to great lengths to make sure that it was above suspicion; if it could be bypassed at any time, that would be a great mistake. I have absolutely no doubt that these academies will be able to show that they can pass the benefit test, so why damage the balance that we created in the 2006 Act?

Most important, we are creating a dangerous precedent. A future Government—not this Government or any Government that I am thinking of—could use this ability to say that something is going to be pushed through on the ministerial fiat. It would be a great mistake to allow that kind of precedent to be created in the Bill.

On the implications of exempt charity status, I entirely share the views of my noble friend Lord Phillips. We need to know what the regulatory body will be. The sly, shy hint in paragraph 29 of the Explanatory Notes does not go far enough. We need to know whether the regulator will have a public benefit test and, if so, whether it will be the same as that of the Charity Commission. It is essential that it should be so.

When my noble friend replies, will he say whether he thinks that he has the power to enforce this? Section 13(2) of the 2006 Act states:

“The body or Minister must do all that it or he reasonably can to meet the compliance objective in relation to the charity”.

However, as far as the Charity Commission is concerned, that is only one of five objectives. It has a public confidence objective, a public benefit objective, the compliance objective to which I have just referred, a charitable sources objective and an accountability objective. We need to know whether those other objectives will be met in this case. As my noble friend has said, we need to know what will happen to existing charities and whether we will have a further unevenness in the playing field.

I do not expect to reach finalisation on this tonight but I seek from my noble friend reassurances on two or three central points: first, that the Government will not reintroduce presumption by the back door; secondly, that they respect the independence of the Charity Commission and its expertise; and, thirdly, that they see the great dangers of the precedent that we will be creating.

My Lords, I will not make any long arguments. My noble friend Lord Phillips has referred to museums and to Kew, but I think that, although the secondary legislation to appoint a charitable regulator other than the Charity Commission is in draft, it has not yet been triggered. I think that the matter is still in limbo.

I stand corrected. That secondary legislation was drafted by the previous Government and I must confess that I had some hope that the coalition Government would see that there had been an error and not implement it. An extremely strong argument has to be made in order to appoint any charitable regulator other than the Charity Commission. In default of that argument, the Charity Commission should be the charitable regulator.

My Lords, I have got slightly confused about the groupings. I think that I have a clause stand part in here. Anyway, I shall make a brief contribution to this debate.

The contribution from the noble Lord, Lord Phillips, on the question of charitable status and the automatic exemption proposed in the Bill was so key that I am not sure that I want to add much more. When I read the Bill, it gave me great cause for concern. I sat through much of the proceedings on the Charities Bill as a new Peer and learnt how thoroughly this House can interrogate a piece of legislation. I came to understand the importance of presumption and the role of the regulator in safeguarding the values that the charity brand, if that is the right phrase, has for members of the public. This is a fundamental step to take.

The Department for Children, Schools and Families considered this measure for its last Bill but rejected it on the basis of advice that we received, so we were listening carefully. There were lots of good reasons why academies might want to become charities, but in the end there were not enough good reasons to suggest that all the careful deliberation that this House and the other place went through to achieve that settlement should be thrown out. To carry on the Monty Python link, I would say that this clause is a dead parrot, as it really is dead as a concept. I would be interested to hear the Minister’s response, but I have heard some convincing arguments today for why Clause 8 should not remain in the Bill.

My Lords, I deeply regret having mentioned Baldrick. I am learning as I go and I shall attempt to be more concise in future.

I shall attempt to respond to some of the broad points that have been made and the specific concerns that have been raised. I am conscious of the expertise that resides with both my noble friends, so I think that the sensible way forward, if they are prepared to spend the time, is for me and officials to sit down with them and go through these points in more detail, taking advantage of their knowledge and trying to address some of the points that have been raised.

Perhaps I may respond in general terms to the main thrust of the points made around Amendment 167, which would remove the provision for academy trusts to be exempt charities. The effect of that, as my noble friend made clear, would be that they would have to continue, as now, to register individually with, and be regulated by, the Charity Commission. As we discussed earlier, hundreds of maintained schools may apply to become academies during the next few years and, as charities, they would, if not exempted under subsection (4), all have to be regulated by the Charity Commission. That would clearly be a huge additional burden. I accept the point made by my noble friend Lord Phillips that whoever does it will have to deal with it, but I believe that the Charity Commission accepts that the burden of taking on that regulatory role would be considerable.

A range of educational bodies are exempt charities. Further education colleges and higher education colleges are exempt charities and not regulated by the Charity Commission. The governing bodies of foundation and voluntary schools are shortly, following discussion and agreement between the Charity Commission and the department, to become exempt charities as well. They will cease to be regulated by the Charity Commission and will be regulated by the department instead. We therefore thought that academies could be treated consistently with these other schools and educational bodies and be made exempt in the same way.

I know well that the Charity Commission is committed to ensuring that proper public accountability for academies is maintained. It is our intention that funding agreements or grant arrangements should place an obligation on academy trusts to publish their governing documents, reports, accounts and the names of trustees. I hope that that offers the noble Lord at least some reassurance that there would not be an unacceptable reduction in accountability and transparency.

The Minister for the Cabinet Office has agreed in principle that the YPLA should be appointed as the principal regulator for academies. That is the government body with day-to-day responsibility for academies. Once opened, it could be the appropriate body to carry out that role. I am told in response to a point raised in the debate that all principal regulators appointed under the 2006 Act have been appointed under secondary legislation.

I hope that my answers have provided at least some factual information. However, having listened to the debate, I repeat my invitation to my noble friends Lord Phillips and Lord Hodgson to spare the time to sit down with me and discuss these matters at greater length. I ask my noble friend to withdraw his amendment.

My Lords, my noble friend the Minister cannot be fairer than that. I am tempted to make some comments of my own on some of his, but that would be wicked, cruel and unnecessary. I beg leave to withdraw the amendment.

Amendment 161 withdrawn.

Amendment 162 not moved.

Amendment 163 had been withdrawn from the Marshalled List.

Amendment 164 not moved.

Amendment 165

Moved by

165: Clause 8, page 6, line 14, at end insert “, or

“(b) may apply to be a community interest company (CIC)”

My Lords, I shall be very brief on Amendment 165, because it is an alternative route to heaven for academies. It would permit them, instead of becoming charities, to become community interest companies. It is a probing amendment which may repay some study, and I look forward to hearing what my noble friend has to say about it.

The Companies (Audit, Investigations and Community Enterprise) Act 2004—inelegantly entitled, I agree—has in it a bit on community enterprise. Part 2 of the Act, which comprises Sections 26 to 63, establishes the concept of community interest companies. If the Minister’s officials care to look through those clauses, they may be able to or wish to advise him that it could be a useful structure for the new academies to adopt. I shall not weary the Committee tonight with a recitation of how they would all fit together, except to say that Section 35 sets up a community interest test, rather like the public benefit test, while Section 27 establishes a regulator of CICs, as they are known, with extensive powers, and Section 30 caps dividends and distributions, so they are not profit-making in the normal sense of the word. There are a number of less important aspects, which might have value in this approach.

CICs cannot be charities, so they would be travelling a totally separate road. They come under Companies Act regulations. However, this could be a useful alternative—not compulsory, but a possible alternative—to becoming an exempt charity with some of the issues that we have just been debating in the previous group of amendments. This amendment seeks to explore the possibility. I beg to move.

My Lords, I know that the noble Lord, Lord Phillips, will probably have something to say on this. The noble Lord, Lord Hodgson of Astley Abbotts and I had several happy hours in the Chamber discussing community interest companies and how they should be formed. The noble Lord is correct—it was a matter of some significant discussion at the time that a community interest company could not be a charity. However, a main feature of a community interest company is the asset lock. That is why it is such a valuable company form for social enterprises. I am not sure how that could be applied as an alternative form to a charity. This is a complex issue, and I am sure that the noble Lord, Lord Phillips of Sudbury, is about to make it even more complicated, because I know that he has very firm views on this, but I cannot see how the asset lock would work here.

I do not like being known as a man who complicates things, but I shall just say that I, unusually, do not support the noble Lord in his amendment. The fact that a CIC cannot be a charity is a fundamental impediment. It would also mean that it could not have a principal regulator under the Charities Acts 1993 and 2006, which would be a really major drawback. However, the noble Lord has at least drawn the attention of the House, inadvertently perhaps, to the charitable incorporated organisation, which is a new corporate animal created under the Charities Act 2006. The Charity Commission is still struggling to find the regulations appropriate to the birth of this new beast but, by jingo, when it is born, it will be a perfect vehicle for these new academies. As Clause 8 has been drafted by Monty Python, it will not be a permitted corporate carrier of a school, although plainly it should be. So I am grateful to the noble Lord for his amendment, even if I disagree with it.

My Lords, I am glad to have the opportunity to agree with my noble friend Lord Phillips but, as has already been pointed out by my noble friend Lord Hodgson, the CICs—a word I have learnt tonight—are not charities so, from a practical point of view, I am advised that any academy which became a community interest company would have to pay corporation tax, rates tax and small amounts of additional VAT. It would also lose Gift Aid on direct donations. Therefore, there may be practical reasons why it is a less attractive option apart from any point about the asset lock, which I am sure I will also learn about rapidly. Given that my noble friend Lord Hodgson will, I hope, be able to discuss these issues more generally with me, perhaps we can touch on this as well as part of those broader discussions.

My Lords, may I make a point to the Minister? I am concerned about the timing of this Bill because the issues raised tonight are extremely complex. We are due to have Report stage within a week and, knowing that the machinery for getting approval for amendments in government does not move as speedily as one would wish, I am concerned that there will not be enough time to give full consideration to these matters. I hope that he will give some consideration to ways in which this House can really have enough time to deal with these matters appropriately.

My Lords, I have been invited to withdraw my amendment, which I am happy to do. I think that there are ways around the asset lock, which I will not bore the House with at 11.40 pm. To my noble friend Lord Phillips, I had thought about putting down an amendment about a CIO—a charitable incorporated organisation—but since the regulations were not yet drafted, that would be otiose to our discussions on this point. I beg leave to withdraw the amendment.

Amendment 165 withdrawn.

Amendments 166 and 167 not moved.

Clause 8 agreed.

Amendment 168

Moved by

168: After Clause 8, insert the following new Clause—

“Academy proprietors: freedom of information

In Schedule 1 (public authorities) to the Freedom of Information Act 2000, after Part IV insert—

“Part IVAAcademies56A A qualifying Academy proprietor, within the meaning of section 8(2) of the Academies Act 2010, when exercising functions under that Act.””

My Lords, the coalition agreement pledges to review the Freedom of Information Act with a view to increasing its scope. This, the first legislative act of the coalition, seeks to reduce its scope. It should not.

My Lords, in Amendment 168 my noble friend proposes inserting a new clause that would amend the Freedom of Information Act 2000 to add academy proprietors to the list of public bodies covered by that Act. Having thought about this, and having come newly into the department, I think that he makes a very good point in his new clause. I can see no reason in principle why academy proprietors, in relation to their function of running academies under academy arrangements, should not be subject to the Freedom of Information Act in the same way as all other state-funded schools are.

I am also happy to confirm that this Government, like the last one, accept that academies are public authorities for the purposes of the Act. In principle, then, I am completely with my noble friend on the merits of his amendment. It also helps us to address some of the broader debate that we have had about consultation, where I accept the points that have been made from around the Committee. Making sure that information is available and that there is as much transparency as possible is part of the process of helping to overcome suspicion, so it will help in that respect as well. I undertake to consider the issue further. If my noble friend would be happy enough to withdraw his amendment, I will come back to the issue on Report.

My Lords, that is very cheering news at this time of night, I shall go straight off and have a whisky to celebrate. I beg leave to withdraw the amendment.

Amendment 168 withdrawn.

Amendments 169 and 170 not moved.

Clause 9 agreed.

Amendment 170A not moved.

Schedule 1 : Academies: land

Amendments 170B to 174 not moved.

Amendment 175

Moved by

175: Schedule 1, page 16, line 8, at end insert—

“( ) requiring the appointed person to ensure provision of premises which meet designated minimum design standards, including standards which meet the needs of students with disabilities”

My Lords, I will try to race through this. I apologise for not signalling the subject at Second Reading, which I could not come to. It was, however, trailed in the Statement on free schools. I was grateful for the insight into government thinking which the Minister provided then.

Amendment 175, in my name, is predicated on one overarching fact—that the design of school buildings is fundamental to their purpose; and that a well designed school building, as well as keeping initial and recurring costs down and being environmentally sustainable, contributes materially and significantly to the educational success of the school. In the new Westminster Academy we can see even wider social achievements, including not only the educational results of a drop in truancy and a big rise in attainment, but also a drop in crime around the school. There is nothing in the Bill about the role of design; nor, as far as I can see, is it in the remit of the very interesting New Schools Network, about which the Minister wrote to us. Design was not directly included in the statutory remit of the original academies either, but they were to be created as part of a framework which insists on design criteria.

Design is not an amateur matter. We may all think we know a good design when we see one, but it is not just a matter of good taste. It is a matter of functionality, and of buildings or other objects which achieve a purpose. As regards school buildings, the standards—the modern ones in the Building Schools for the Future programme of the last Government—are well accepted. I entirely agreed with the Minister when he said in the Statement on free schools, in answer to my question, that the building regulations need a fresh look. I am referring not to this ancient corpus of law but to the up-to-date and innovative standards of our excellent new schools. If academies are to be built or put in refurbished buildings outside this framework, unless the sponsors have access to or understanding of school design skills, the children who study there will be deprived. Money will be wasted. I am sure that the noble Lord opposite does not want academy students to be let down in this way.

Listeners to the “Today” programme on 18 June will have heard new sponsors of academies being grilled about how even to get their building up in the first place. Procurement and construction are complex processes, requiring expertise and negotiation. If good design is not part of the process from the beginning, it invariably loses out and so then do the students, not least those with disabilities. My amendment would ensure that the appointed person in the regulations in Schedule 1—usually, no doubt, the sponsor—has a duty to find out what the appropriate design standards are and apply them. As I said, the standards exist. They could of course be adapted to allow for a range of educational models and school ethoi. This would work very well if the Government continued with the client design adviser system, another successful innovation.

I do not think that we should allow our children’s education to be vulnerable to the vagaries and variations in expertise of groups of people who may have clear ideas about the teaching culture they want to set up but no acquaintance with design. I beg to move.

My Lords, I agree with the noble Baroness, Lady Whitaker, about the importance of design. There is such a thing as a dysfunctional building. Schools are buildings around which large numbers of children have to be moved every day. It is very important that they are well designed for that purpose, as well as for concentration and calm contemplation of the lessons. If the buildings magnify sound, they will not be very good for that purpose.

I am also concerned about the green credentials of schools. Will the Minister say something about the design standards in relation to the use of energy and water, and the disposal of waste and all those issues? I have often suggested that schools are ideal places for ground-source heating. They have large tarmac playgrounds under which you can put the pipes. It really is important because in the future energy will be even more expensive than it is now and we will all have to pay for it.

I recently went to an academy school where in order to switch the lights off at night the caretaker had to go to the top of the building. However, he was forced to leave the lights on all night because health and safety would not allow him to come down the stairs in the dark. That new, purpose-built academy building was ablaze all night. It was a disgrace and I hope that we will avoid that sort of thing.

My Lords, my noble friend Lady Whitaker and I have stood shoulder to shoulder in campaigns for good design in recent years and I am happy to join her in the field tonight. It is too much, no doubt, to ask that the magnificent £50 billion Building Schools for the Future programme should be continued, but it is essential that design standards should not be dropped in the school building that does continue. Presumably that will mainly be the construction of academies. Do the Government intend still to provide some funding to support the creation of fine new academy buildings, as their predecessor did? Will the Government at least maintain minimum design standards?

This matters very much. Children and staff in schools, like everyone else, should work in a good built environment. The benefits of that for their morale, spirit and performance are marked. Good design is practical and works better. Well designed schools, like well designed hospitals, hospices, railway stations and magistrates’ courts, are statements about the values we hold as a society, our attachment to civic values and the public realm and our commitment to sustainability, an important point raised by the noble Baroness, Lady Walmsley. There are important symbolisms in good design.

Good design is an expression of national self respect. It is a manifestation of the respect we have for our community. There is a noble tradition of design of school buildings and it is one which we must not lose. Our Victorian and Edwardian forebears took it as axiomatic that a school should be a proud statement on behalf of the community in its design. The school building programme launched after the Second World War by Ellen Wilkinson, as Secretary of State, led to a commitment in a number of local education authorities to good design in a modern idiom. The schools designed in Hertfordshire for the local education authority by Stirrat Johnson-Marshall were celebrated. He was an architect who was described as,

“Socratic in manner of discussion and intolerant of formality in any guise”,

which, I think, means that he sought to find out what people thought, to elicit their best ideas and to develop his designs accordingly, as good architects do. Equally, later in Hampshire, the schools designed by Colin Stansfield Smith were celebrated, and the local education authorities which committed themselves to a programme of high-quality design in school building were strongly and admirably supported by the ministry’s architecture and buildings department.

More recently, under the previous Government, we had the Building Schools for the Future programme. I shall mention two schools that were jewels in that programme. The Mossbourne Academy in Hackney was built in an area known as “murder mile” because of the gangland killings there. It replaced Hackney Downs comprehensive, a school which had gone so far down in the world that the tabloids described it as the worst comprehensive in England. The school reopened in 2004 in buildings designed by the Richard Rogers Partnership. The first intake of the new school consisted of children, nearly half of whom were eligible for free school meals and 30 per cent had special educational needs. They took their GCSEs in 2009 and achieved some of the best state school results in the country. The Mossbourne Academy topped the league tables in value added. That was, above all, due to the leadership of Sir Michael Wilshaw and first-rate teaching by his colleagues, but design, they acknowledge, was also an important factor—as was the case at the Westminster Academy, which my noble friend and I visited earlier this year. There, the architects Allford Hall Monaghan Morris were awarded the RIBA Sorrell Foundation Schools Award. This is an opportunity for this House to pay tribute to Sir John Sorrell and his wife Frances for their extraordinary generosity and creativity in their support through their foundation for good school design. The design of the Westminster Academy is beautiful and clever. As my noble friend said, the results in the new school soared by comparison with the results in the old school because pupils were treated with respect through design, and thus learnt to treat their school and neighbourhood with respect. The head teacher and her staff above all deserve the credit, but she insists that the quality and nature of the design of the school were crucial in making possible the curricular flexibility which, in turn, was key to the motivation and success of that school.

The Government want to impose the minimum bureaucratic burden on academies, and that is right. Good design cannot be promoted by regulation, but bad design can be averted. I hope that the Government will keep the minimum design standards that the DCSF pioneered in the public sector. I hope also that the Government will keep the engagement of CABE, which is not a quango to cull. It mobilises at negligible cost talented and expert people to illuminate and promote good practice in design. Here the leadership of Ministers is needed and, as elsewhere in education, leadership, aspiration and ambition are the magical ingredients. Only the best should be good enough for our schoolchildren, their teachers and the staff in our schools. We can afford the best. Good design costs no more than bad design. It is simply a matter of doing the job well. Indeed, good design costs less over the lifetime of the building.

My Lords, I am tempted to answer that lengthy catalogue of good schools in London and close to London by giving examples of schools in Yorkshire and outside the south-east, because often in this House and even more in the national media we tend to focus on what happens in London, not in the rest of the country. One thing which disturbed me in recent years was when I visited a school in Yorkshire which appeared to have been built for a 25-year lifespan. Its sustainability was not good. Also a prison was built for a 25-year lifespan. That is part of what is wrong with current thinking about public buildings as a whole. I also went to a school last year which had been built within the past 10 years and had almost no worthwhile roof insulation. Sustainable standards are not very good in many of the new schools that have been built under the BSF programme. So let us not kid ourselves that the previous Government left us with an unsullied legacy of well designed, highly sustainable buildings of comparable quality to those wonderful Victorian school buildings now being replaced.

I appreciate the thinking behind the amendment, and I am conscious that behind it are stories about charter schools in the United States being put up in warehouses. We had some friends visiting us from New York this weekend who talked about some of the problems that they have run into there with people starting schools in unsuitable buildings. Of course, we wish the premises of all schools to meet the needs of their pupils, including those with disabilities. We are well aware that the quality of the built environment of the schools in which they are educated does affect their outcomes. However, sufficient protections are already in place to ensure that children at academies are as fully protected as those at maintained schools. All schools, including maintained and independent schools, are required to comply with the requirements of the Disability Discrimination Act 1995, which include a requirement to prepare and implement accessibility plans. These provide for the implementation of improvements to the school premises to accommodate existing and future disabled pupils within a reasonable period. The 1995 Act will be revoked by the Equality Act 2010, but the requirement for all schools to prepare and implement accessibility plans is replicated in the new Act.

I hope that my explanation of the existing protections demonstrates that no additional controls are necessary. One cannot legislate for top-quality architects to be provided for every new school. Sadly, in my limited observation of new schools around Yorkshire, not all those that have gone up in the past 10 years are particularly beautiful. However, I emphasise that in terms of accessibility and sustainability, the controls and regulations are in place. On that basis, I invite the noble Baroness—

Will the Minister confirm that the department will continue to keep in operation the minimum design standards that operate at present?

I have no reason to doubt that—and if I discover that it is not the case, I will of course write immediately to the noble Lord.

I interject briefly to seek reassurance on those minimum standards. I am reminded by this debate of a report some time ago about a head teacher of a new academy school that had been built without a playground. The head teacher reportedly said, “We don't need one, we will have them working very hard in school all day, thank you very much”. A paper presented to the British Psychological Society emphasised the value to children of having play breaks in the school day, and looked at how those play breaks had been squeezed over time. It would be reassuring to know that there is something in the minimum standards about a play area for children in every new school. If the Minister would write to me on that, I would appreciate it.

My Lords, I am very grateful to all noble Lords who have joined in at this dreadfully late hour. I particularly value the point about CABE, which is an economical and expert organisation that we hope will continue to be used as it has been. I am grateful, of course, to the Minister for the degree of his understanding, and for his assurances on accommodation for children with disabilities. I was not quite so sure about the firmness of his assurances about design standards for all schools. Perhaps he might write to me with the assurance that the current design standards will be used for academies, or perhaps we could have a brief chat about it. If the outcome is satisfactory, there will be no need to take the matter further; but we do feel strongly that there must be this assurance. I will read Hansard carefully and hope for another letter, or perhaps a conversation. In the mean time, I am happy to withdraw the amendment.

Amendment 175 withdrawn.

Schedule 1 agreed.

Clause 10 agreed.

Amendments 176 to 183 not moved.

Schedule 2 : Academies: amendments

Amendment 184 not moved.

Amendment 185

Moved by

185: Schedule 2, page 16, line 37, leave out from “section” to end of line 39 and insert “337(b) (special schools not maintained by local authorities) after “approved under section 342” insert “or is an Academy”.”

Amendment 185 agreed.

Amendment 185A

Moved by

185A: Schedule 2, page 17, line 26, at end insert—

“( ) In section 133(6) (requirement to be qualified) omit the “or” after paragraph (a) and at the end of paragraph (b) insert “, or (c) an Academy”.

( ) In section 212(1) (general interpretation) insert at the appropriate place the following definition—

““Academy” means an Academy within the meaning of the Academies Act 2010;”.”

My Lords, I tabled this amendment to ensure that academy support staff are not excluded from the School Support Staff Negotiating Body, which was set up under the Apprenticeships, Skills, Children and Learning Act 2009. The establishment of this negotiating body was supported on all sides of the House. There are concerns that, because academies have freedom to negotiate separate pay and conditions, their staff will be excluded from the negotiating body.

Many people will recognise that changes in educational practice over the past 10 years mean that support staff now play a very important part in schools. Over the years, we have treated them extremely badly. The negotiating body is the first move on the part of any Government in creating a proper career structure and providing proper negotiating machinery for support staff, who have been paid extremely badly. We are seeking assurances from the Government that academy staff can be included within this negotiating body. I beg to move.

My Lords, there are over 200,000 more support staff in our schools thanks to the investment put into school improvement under the previous Government. More than 123,000 of these staff are classroom teaching assistants, who support teachers in identifying and helping children who need extra support.

The previous Government established the School Support Staff Negotiating Body to ensure fair pay and conditions for hundreds of thousands of people whose jobs on the front line help to give every child the best start in life. This was part of a partnership that we built between government, employers, unions and staff, known as the Social Partnership.

A forum for real dialogue between government, the trade unions and school staff is something which I consider to be extremely important and which I am sure all of us in this Chamber can look back on with pride. Whatever else the coalition Government may disagree with us about, I hope that—in going forward with the previous Government’s approach—they do not forget that it is by working with, and not against, staff that you can drive change and raise standards in our schools. I hope that we can hear some very constructive language and views from the government Benches.

It is true that under the previous Government academies were not covered by the national pay and conditions structures, although they were invited to be involved in the school support staff negotiation process. As I understand it, the amendments in this group are not intended to represent reneging on that position. If academies are to become the norm for secondary schools in this country—if the majority of schools adopt academy status, as I understand is the Government’s view—these amendments are looking for an understanding that, rather than being a tool for driving improvement in a number of areas, it is right and proper that there should be a framework for collective bargaining, particularly for these important staff members who have made such a difference in our schools.

Giving a few schools in challenging areas the freedom to vary the terms and conditions is one thing, as it may help them to break down entrenched disadvantage and to attract new staff to schools where morale may have been low and staff turnover very high. However, by giving such freedoms first to the strongest schools may undermine the aims of the academy scheme and, therefore, the rationale for the approach to the rights of workers in the sector to collective bargaining. The rationale simply will not stand up. I hope that the Minister can respond with supportive language to these ideas. I look forward to hearing his views.

I always try to be as helpful to the noble Baroness, Lady Morgan, as I can. I certainly echo what she and my noble friend said about the importance of support staff and the contribution that they make. On this occasion, I fear that I shall not be able to be as supportive as she perhaps would like and as my noble friend might like in substantive terms.

Our view is that the freedom over staff pay and conditions, which has been extended to academies in relation to teaching staff, is an important freedom and it is one of the reasons why schools have wanted academy status. Our view is that if it is good enough for teachers, it is good enough for support staff. I suspect, although I do not know because it was before my time, that at the beginning, when academies were given greater discretion over pay, there may well have been concerns that it would lead to staff at academy schools in some way being done down because they were not part of national agreements. Over time, those fears have not been realised.

There is no reason to believe why the same should not happen as regards school support staff. Academies could use their greater freedom to treat them well and perhaps to treat them better. We believe that those freedoms have been vital to academies’ success. They allow them to make changes to the school, to drive up standards and to employ the best staff. It is one of the core freedoms. On this occasion, I certainly feel that academies ought to be able to have those freedoms in relation to school support staff.

My Lords, I am disappointed that the Minister was not more forthcoming on these amendments. It seems to me that over the years support staff have not been treated well and this was a positive move to give them status. However, given the lateness of the hour, I shall not pursue the matter further. Perhaps the Minister and I can have words about it later. I beg leave to withdraw the amendment.

Amendment 185A withdrawn.

Amendment 186

Moved by

186: Schedule 2, page 18, leave out lines 25 to 27

Amendment 186 agreed.

Amendments 187 to 189 not moved.

Schedule 2, as amended, agreed.

Clause 11 agreed.

Amendment 190

Moved by

190: After Clause 11, insert the following new Clause—

“Annual reports

The Secretary of State must produce a report every twelve months on the impact of the number of Academies established in the past year on the teaching workforce.”

My Lords, I will endeavour to be as brief as possible. This amendment would require the Secretary of State to produce a report every 12 months on the impact of the number of academies established in the past year on the teaching workforce. The purpose of that is twofold: first, to produce some mechanism to monitor the impact of these changes on the workforce; and, secondly, to flag up the concern that inadvertently these changes might lead to the creaming off of the best teachers into the best schools with the best pupils, with the consequence that the poorest pupils in the worst schools would have the least good teachers. I know that that is not the Government’s intention, but it is much better to consider such possibilities now rather than just walking down the road and running into them later.

As regards the reports, will the Minister consider some way of monitoring the impact of academies on the general teaching workforce? Perhaps there is already enough to measure what is happening on the ground. Can he comment on that, or perhaps write to me? I would also be grateful to hear from the Minister what action he can imagine if what I have described were to happen. He has already referred to what can be done—for instance, Teach First is focused on the most vulnerable children in the most difficult areas. I think that City Challenge helps in this area, too. What other mechanisms might be put in place to redress the possibility early on before the rot begins to set in?

I worry about stratification. I have already mentioned the consequences of a mixed market in the Prison Service, in child care and in independent social work practices. Perhaps I may remind your Lordships of the guardians ad litem, who were crack social workers appointed by the courts to represent the voice of children in public law in the courts. They present rather a good case in point for the rationale for having academies, because those social workers were frustrated by working in local authorities. By working for the courts, they were independent and pretty much decided how much time they wanted to dedicate to each child. The posts attracted many of the best social workers, paid less for their experience and gaining little career progression. At least a couple of your Lordships had spouses working in this area. Unfortunately, 12 years ago the Government decided that they wanted firmer control over these practitioners and as a consequence many of them simply left social work.

It is easy to be critical when one is not responsible for such a change, but I remember attending a meeting where the guardians were gathered. It was so disappointing to see such a great deal of expertise leaving the profession. Now we have the Child and Family Court Advice and Support Service, which amalgamates the former guardians ad litem and the former court reporting officers. There again we see a problem, in as much as CAFCASS requires officers who have at least three years’ experience in social work. That means that frontline social workers are pulled off the front line into CAFCASS and are taken away from where they are needed most.

My point is that that was all done with the best of intentions, but the consequences were not thought through at the time. I hope that the Minister will reflect on that. I would appreciate a sense that the Government have considered the issues, that they have ways of monitoring the impact and that there are means of taking action if that becomes a problem in future. I beg to move.

I hope that I can provide some reassurance on the concerns raised by the noble Earl, Lord Listowel, which he has made consistently throughout Committee. The Department for Education publishes comprehensive statistics each year on the school workforce—I give way to my noble friend.

I was expecting the number of my amendment to be called. I apologise; I will be very brief. First, as it is the last amendment in this long Committee, I should like to say a word of tribute to the Minister, Lord Hill of Oareford, because after a baptism of fire—perhaps a baptism by exhaustion is a more favourable phrase—he deserves great credit for having sat through the whole thing and been so helpful in his responses.

My amendment is similar in many ways to, but not the same as, that of the noble Earl, Lord Listowel. The noble Earl is particularly concerned about the issue of monitoring and of the effect on the teaching workforce. I have sympathy with him, because we know that there has been recruiting of head teachers to academies over and above the normal recruiting of head teachers. There is a real worry about weakening the quality of the teaching force in maintained schools. However, my reasons are rather different. I will mention them in a couple of sentences. They are all about accountability.

My great concern about the Bill is that there is very little structure of accountability in it. Once local authorities have gone and once the consultation has gone, we begin to look at the frightening prospect expressed by my noble friend Lord Hodgson of Astley Abbotts when he talked about the possibility that the powers rested with the Secretary of State and his department, almost unchallenged all the way down to the schools themselves. That is why I propose a report to Parliament to bring one body of accountability back into the picture. There have been very few countries—the Soviet Union was one exception, and Germany under the Nazis was another—where there was no accountability whatever between schools and central Government. That continues to trouble me. Although I do not pretend that my amendment will by itself meet the need, there is a serious need for greater accountability. I think that the noble Lord, Lord Hill, has accepted that. We look forward to what he has to say at Report.

Forgive me for having pre-empted my noble friend Lady Williams; I will make a second stab at it. Before I do so, I thank everyone who is still here at this late hour and everyone has been here throughout this Committee. My noble friend pointed out that it has been something of a baptism of fire, but noble Lords’ comments have been unfailing helpful, courteous and stimulating, and I am extremely grateful.

I understand the desire of the noble Earl and my noble friend Lady Williams for information. The department publishes comprehensive statistics each year on the school workforce in England, which may well provide him with some of the information that he is interested in on teachers. Those data are published provisionally in April and the final data are published in September. They contain information about the number of teachers and other school staff in academies compared with previous years. The noble Earl would be able to see that information, and it may provide him with some of the facts and figures that he wants.

In relation to his fears about what might happen, from a practical point of view, it is the case that the first wave of new academies will all be outstanding schools, so it may well be the case that the impact on staff will be less pronounced than was the case with some earlier academies where there was a bigger turn-around job. Common sense says that there will be more continuity in a school converting from maintained to academy status. I agree with the noble Earl’s underlying point. Our job overall is to attract more good teachers into all schools. I do not think that one should accept the premise that there is a given number of good teachers and therefore be afraid that that fixed number of good teachers will just be parcelled up throughout the system. I think all noble Lords would agree that we need to do all we can to increase the supply of good teachers. We will aim to do that by working to raise the esteem of the profession, which is clearly vital, strengthening the ability of schools to improve discipline, removing some of the bureaucracy that we have discussed in this Committee to enable teachers to get on with teaching, and extending programmes such as Teach First and Future Leaders. I hope that provides some reassurance to the noble Earl.

However, we are not convinced that if we provide more of this kind of information, an annual report by the Secretary of State is necessarily needed to address the issues of substance. We are not certain that it needs to be in legislation. So far as the annual report and the points made by my noble friend Lady Williams are concerned, I accept that we need to have information out there on which people can make decisions. In part, I hope that will be helped by our earlier discussion about freedom of information, which will be part of making more information about academies available. As part of my commitment to think about how one gets more information out in general, we need to look at how parents can get information about schools more readily.

The academies programme will continue to be evaluated, and the results will be published. The National Audit Office and the Education Select Committee are likely to have a continuing role in monitoring the provision of education at academies. With that panoply of different forms of scrutiny, our view is that a formal report to Parliament would not be necessary. That said, I accept the underlying force of the points made by my noble friend and the noble Earl. I hope that will provide some reassurance and I urge the noble Earl to withdraw his amendment.

My Lords, I thank the Minister for his courteous and helpful reply. I hope, like him, that there is no given number of good teachers. I am afraid that my experience elsewhere is that there have been shortages of the best, but I very much hope that his Government’s programme next year will continue the process that was begun by the preceding Government to raise the status of teaching and to make it more attractive. The current recession may well boost that.

A thought occurs to me. One thing that we have done in children’s homes in this country is to have Danish pedagogues working alongside British practitioners. Since we have talked a fair deal about Finland and other countries, perhaps we might encourage an exchange with a country such as Finland so that some of its teachers come and practise in our schools, particularly in our more difficult inner-city schools, as another means of raising standards.

I am grateful to the Minister and I beg leave to withdraw the amendment.

Amendment 190 withdrawn.

Amendment 191 not moved.

Amendment 191A

Tabled by

191A: After Clause 11, insert the following new Clause—

“Reports to Parliament

The Secretary of State shall make a report to Parliament on the progress of schools which have converted to Academies, and on the implementation of this Act, not more than 12 months after its commencement, and each year thereafter.”

I thank the Minister for his response, and thereby sadly, but not necessarily permanently, will not move the amendment.

Amendment 191A not moved.

Clause 12 agreed.

Clause 13 : Interpretation of Act

Amendment 192

Moved by

192: Clause 13, page 8, leave out line 10

Amendment 192 agreed.

Amendment 193 not moved.

Clause 13, as amended, agreed.

Clauses 14 and 15 agreed.

Clause 16 : Short title

Amendment 194 not moved.

Clause 16 agreed.

In the Title

Amendment 195 not moved.

House resumed.

Bill reported with amendments.