Committee (2nd Day)
Relevant documents: 2nd Report from the Delegated Powers Committee and 1st Report from the Constitution Committee
Clause 2: Academy standards: relationship with contractual agreements
30: Clause 2, page 3, line 35, leave out subsection (6)
Member’s explanatory statement
This amendment removes clause 2(6), bringing the treatment of secure 16 to 19 Academies under that clause in line with that of other Academies. This means that if an Academy standard applies to secure 16 to 19 Academies, this can trump any corresponding contractual provisions.
My Lords, I turn first to the government amendments in my name. The majority of these represent technical amendments to deliver the policy as intended, extend consultation requirements to existing measures and otherwise clarify the intent of the Bill.
I apologise, but I want to intervene on the Minister before she gets too much into her stride. I want to put on record the disappointment from these Benches that these amendments, which we do not consider to be simply technical or minor, are grouped together. It is a shame, because we would have liked to debate them separately. Can the Minister bear that in mind as we come to Report?
Of course, we will take that into consideration. I was not aware of the noble Baroness’s concerns. To echo that, there are two measures which are more substantial, which relate to secure schools and a prohibition order as part of our enhanced suite of powers to tackle unregistered schools.
I turn first to Amendments 30, 42 and 76, relating to secure schools and their particular context. Secure schools place education at the centre of the response to supporting children in custody, to reduce reoffending and improve children’s life chances. They will be established as both secure children’s homes and secure 16 to 19 academies using the academies framework as a basis for opening.
Secure schools’ funding agreements require unique provisions that reflect their context. Clause 2(6) was drafted to ensure that future new academy standards would not invalidate those unique provisions. We have now confirmed that primary legislation is not required to achieve that because new standards can be selectively applied within the standards themselves. Amendment 30 therefore removes Clause 2(6) as unnecessary to the functioning of the Bill.
Turning to government Amendment 42, Clause 8 requires the Secretary of State to provide seven years’ notice if they wish to terminate funding for an academy to ensure continuity for all year groups. Because children will generally spend fewer than two years in a secure school, Amendment 42 will modify Clause 8 to reduce the termination notice period from seven to two years for secure schools.
Amendment 76 introduces provision for secure schools covering payment termination notices as well as local impact considerations and consultation requirements. On payment termination notices, it amends the Academies Act 2010 to make it consistent with Amendment 42. Section 2 of the 2010 Act places a requirement on the Secretary of State to give seven years’ notice before ceasing payments to an academy. For the reasons I set out when discussing Amendment 42, this amendment will modify the Act to reduce this notice period to two years. Existing consultation requirements for academies include the requirement that the Secretary of State consider the impact of new academies on existing schools in the area. Given that the secure school will not be recruiting from the local area in the same way as local schools, we seek to disapply this requirement to secure schools.
The Academies Act also requires providers to consult relevant persons, such as local residents, on whether an academy arrangement should be entered into. Our view is that there will be a wide and complex range of views on the location of a secure school that the Government will wish to engage with. A “yes or no” consultation on a secure school is less likely to promote this engagement and, instead, the consultation will focus on how the secure school will work with local partners.
I acknowledge that Amendments 76A and 76B have been tabled to Amendment 76 in my name, and I shall respond to the comments from the noble Lord, Lord German, in my closing remarks.
Amendment 40 relates to academy trust standards. Clause 7 allows the Secretary of State to replace an entire trust board with a board of interim trustees. The amendment makes specific provision for the Secretary of State to consult the relevant religious body where the trust includes academies designated as having a religious character. It takes account of the fact that religious bodies have a particular interest in the governance of academies with a religious character, as reflected in those academies’ articles of association. Where the Secretary of State intends to appoint an interim trustee board, the religious authority will rightly wish to be assured that arrangements are in place to safeguard academies’ religious character. The amendment will ensure that religious bodies are able to make representations before any decision is made to appoint an interim trustee board.
I now turn to the five amendments relating to termination provisions for academy agreements and master agreements. Amendments 43 to 46 and 48 in my name relate to the termination procedure to be followed where a 16 to 19 academy is judged by Ofsted as not providing an adequate quality of education or training, or if the Secretary of State is of the view that boarding accommodation at an academy does not meet the required standards. The effect of these amendments is to apply the termination procedure which applies when an academy is judged inadequate by Ofsted, and it ensures consistency of approach. It also replicates the termination procedure currently provided for in funding agreements in these circumstances.
Amendment 47 expands Clause 11 so that it applies to academy agreements as well as master agreements in the case of a change of control of the trust or an insolvency event occurring. This means that the termination power will apply to a single-academy trust as well as a multi-academy trust. This is a corrective amendment to ensure that the legislation accurately replicates provisions in existing funding agreements.
I turn to Amendments 148 and 153. It is a criminal offence to conduct an unregistered, independent educational institution. Those who are responsible for these unregistered settings may knowingly expose the children in their care to a risk of harm and could be a safeguarding risk. Since 2016, fewer than 20 people have been convicted of this offence, but other measures in the Schools Bill should make it easier to identify and prosecute such people. This measure tackles what we have identified to be a risk in our current regulatory regime. There is insufficient practical impediment to those who have been prosecuted for running an unregistered school restarting their operations immediately and, again, exposing children to risk. These amendments tackle that weakness.
Those in receipt of one of these orders will be restricted from a wide range of activities, if these are necessary, to reduce the risk of harm to children. The intent is to make it easier to target and bring prosecutions against those who, through their previous behaviour, have demonstrated themselves willing to expose children to a risk of harm. Any application of these orders will be proportionate to the threat posed. The intent is to prevent reoffending and someone reopening a previously identified illegal school.
Amendment 155 makes it clear that the teacher misconduct measure applies to independent educational institutions that are not schools. Independent educational institutions that are schools are already caught by existing legislation.
Amendment 151 corrects a consequential amendment. It amends Section 125(1)(b) of the Education and Skills Act 2008, which deals with appeal rights against decisions of the Secretary of State to refuse an application for a material change. Without it, Section 125(1)(b) would continue to refer to decisions under Section 104(1) of the 2008 Act as being appealable. However, with the changes made by paragraph 6(2) of Schedule 5 to the Bill, refusals to grant a material change approval will now be made under Section 104, not Section 104(1).
Finally—your Lordships will be pleased to hear—I turn to the exclusion provision in Amendment 96, which seeks to make consequential amendments to Section 494 of the Education Act 1996. That section currently applies only in the case of maintained schools. This amendment will mean that funding transfers between local authorities, where a pupil is excluded from a school in one local authority area and admitted to a new school in a different area, apply in relation to both maintained schools and academies.
These amendments relate to Clause 41, which gives the Secretary of State the ability to make arrangements for in-year adjustments to schools’ funding allocations where pupils are permanently excluded, and will ensure that funding can follow excluded pupils where they move between schools in different local authorities. This amendment will ensure that these arrangements can operate properly in relation to academies under the new funding system that we are establishing in the Bill. I beg to move.
My Lords, I rise to introduce Amendments 76A and 76B, tabled by my noble friend Lord German, who is currently on a working visit to the Gambia and so is unable to be here. These amend government Amendment 76, which the Minister has already referred to.
We on these Benches support the proposal to create secure schools and academies. Youth custody, by its very nature, means that those within them are the most vulnerable and challenging young people. I once taught in a secure school and was struck by the care and hard work of all the teachers, committed to improving the life chances of some very damaged and occasionally violent young people. It was quite a scary commitment. That is why Charlie Taylor, in his review, proposed secure schools as a major way of dealing with the problems of the youth custody system.
However, we are concerned that local authorities have been ruled out of the objective of finding the best provision possible for these most challenging and vulnerable young people. There is a legal route open to local authorities to make a bid for running a secure academy, but such a bid would run counter to the Government’s policy. Yes, you can legally apply to run a secure school, but it is not government policy to accept your bid.
In his 2016 review, Charlie Taylor made two very clear points which are of relevance to this piece of legislation. The first was:
“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”
The second was:
“Rather than seeking to import education into youth prisons, schools must be created for detained children which bring together other essential services, and in which are then overlaid the necessary security arrangements.”
The Taylor report pointed out the absolute importance of integration, not only of education but of a wide variety of services within the work of these schools. Health, social care, and services providing reintegration following custody are required within the school and not external to it. These are services that local authorities currently provide. Following the logic of local authority statutory provisions, particularly those on the duty to safeguard and promote the welfare of their children and the need for a new form of integration, there is much that local authorities can offer.
The then Minister, the noble Lord, Lord Wolfson, said in January:
“I accept that the Government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision … local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here.”—[Official Report, 10/1/22; cols. 825-26.]
It is against this strange backdrop of legal rights and government policy going in different directions that I look at government Amendment 76. It states that
“where the educational institution … is to be a 16-19 Academy”
and not that all secure schools are to be academies. Can the Minister confirm that the legal position on local authority involvement in secure schools has not altered since the Government’s statement to this House in January?
Engagement with local authorities in the work of secure schools or academies has always been seen as essential and welcome, so it is very concerning that proposed new subsection (2A) in Amendment 76 rules out consultation with local government or anyone else and makes consultation with local government only a possibility—and this for a part of our democratic structure which has been stated to have great value by the Justice Minister, speaking in the Chamber in January.
Restricting consultation with a local partner who has the statutory role for the provision of some services in relation to secure schools seems quite a bizarre approach. The words in the government amendment are quite clear: it will be a consultation on how the proposer of the secure academy should co-operate with local partners, and those are the local partners who the proposer of the secure academy thinks it appropriate to consult. There is therefore no duty for them to consult the local government of the area.
I would value an explanation of the ban outlined in proposed new subsection (2A)(a). I recognise that the siting of a secure academy is potentially controversial, so it appears that the rationale for the first part of the government amendment is to avoid normal planning requirements. If that is the case, I remind the Government of their failed policy to cut out local residents’ engagement when housing, building height extensions and other developments were proposed. Some government Ministers even suggested that this policy led to the Liberal Democrats winning the Chesham and Amersham by-election—oh joy.
These amendments seek to provide clarity. Although I recognise the difficulties of planning and siting a secure school as a principle—at the one in which I taught, local residents were extremely unhappy that they had these great thugs being taught near them—the Government should not ride roughshod over the rights given to local people through their local authorities. These amendments seek to recognise the importance of local government, in both the services it can provide and the representation of local interests that is part of its democratic mandate. I hope the Minister can clarify the Government’s intentions in respect of these matters, and as underlined in our amendments, as they affect secure schools or academies.
This is way above my pay grade, but I have been in the Minister’s position before. I humbly suggest, given the formidable opposition on her own Benches to the Bill, which threatens to undermine that of the opposition—we are doing our best, for goodness’ sake, but when it comes from the Conservative Benches it is quite difficult to match it—that she goes back to the department to put a stop on this Bill. We currently have three more days in Committee. I suggest they could be put to much better use than tearing the Bill apart.
My Lords, the amendments my noble friend has tabled really show how interconnected all the Bill’s clauses are. You cannot envisage one without the other; they are interdependent. It is very difficult to move an amendment to any one clause that does not affect other clauses.
I said last week that I would try to find out from our legal advisers the extent to which the Bill may threaten the charitable status of all schools. I had a letter this morning from our advisers, Stone King, one of the leading education law firms. I will read it to the Minister so that she and the officials can reflect on it:
“The Bill sees, accordingly, a material shift from a contract-based system to one which is statutorily controlled.”
At the moment, the relationships between schools and the Secretary of State are as a contract: it is an agreement, and both sides can change it. It is subject to contract law. The Bill would change that to statutory control.
The letter continues:
“It also introduces much more stringent termination powers which include not only existing termination rights, but also the ability for the Secretary of State to flood the board of an academy trust.”
The Secretary of State has never had that power in the past, ever since 1870. This is a fundamental change—a major shift of authority from local authorities to Whitehall. Local authorities were responsible for closures in the past, but then they had checks and balances: before a closure could be decided on, they would have to check with the local community, local councillors and parents. There are now no such balances.
The letter continues:
“It was considered that such flooding rights were incompatible with the independence of an academy trust as a charitable company and that a contractual breach should lead to a contractual remedy—not to seek to control … the academy trust itself.”
This matter has been dealt with by the Charity Commission in the past, so I ask the Minister to reflect on, or find out from her officials, what the exact position is. The position was that, before 2010, the Charity Commission was very concerned about the independence of schools, so it made them all statutory charities. That gave them certain very clear rights. The letter states:
“The Charity Commission had doubts, in the late 2000s, about the charitable status of academies given the controls which could be exercised then by the Department for Education and Skills … This led to the provisions of the Academies Act 2010 which made academy trusts charitable”—
all the schools in our country today are statutory charities. The letter continues:
“It would be very hard to see how the Commission would be at all comfortable with these additional restrictions, and it would be interesting to understand whether there has been any dialogue between the DfE and the Charity Commission”.
If the Minister says that there has not been, I intend to write to the chairman of the Charity Commission tomorrow.
This is important because, as the letter continues:
“A further point arises with regard to HMRC, and whether HMRC would be willing to continue to afford charitable tax breaks to academy trusts in circumstances where they are so very tightly controlled that their charitable status is in doubt. We wonder whether this point has been considered, and whether the views of HMRC have been sought on this point. Clearly, the removal of charitable tax breaks would have a significant and detrimental impact”
on all schools.
I raise this now only because this is such a fundamental point. It is saying that the 18 clauses could challenge the charitable status of a school, in which case it would lose the tax breaks. I ask the Minister and the officials just to take all this on board. When she winds up, perhaps she will be able to tell me whether the Charity Commission has approved the proposals in the Bill.
My Lords, I speak in place of my colleague, the right reverend Prelate the Bishop of Durham, who unfortunately cannot be present today. I declare his interest as chair of the National Society.
I rise briefly to welcome Amendment 40 in this group, which offers real clarity on the issue. We welcome the recognition it shows that the religious body must be involved in giving an interim trustee notice to the proprietor of an academy school with a religious character. We are grateful for the Minister’s continued work on this and hope this might provide a little encouragement at this point.
My Lords, I have a lot of sympathy with the intervention from the Front Bench by my noble friend Lady Chapman around the unfortunate nature of the grouping of these amendments. I understand that there are reasons why technically the Government might want to bring forward amendments, and I accept that some poor drafting is being corrected by some of these amendments, but it is tricky. For example, there is no explanatory statement on Amendment 96, so without delving back into legislation it is difficult to prepare a view in advance or to understand anything to do with what the Government were proposing. That is really unfortunate.
Government Amendment 148 introduces a new criminal offence that is imprisonable, and with powers of entry for inspectors, by a technical amendment in Committee. These are quite big things. Given the explanation the Minister has given, I think I probably agree with the amendment, but at this stage it is difficult to form a considered view. When this Committee gets to considering independent educational institutions, which that amendment relates to, I hope we can be reminded by the Minister that we have already had some discussion of this new criminal offence around repeated operation of unregistered educational institutions.
There is a policy question around whether two years is the right notice period for secure 16-to-19 academies, as opposed to seven years, but I think the Minister has probably given a good enough answer.
I mostly rose following what the noble Lord, Lord Baker, had to say, which in a way felt a little outside the scope of these amendments, but I can see that there is a government amendment here on terminating an academy agreement and another about essentially including single-academy trusts in termination, so I think it is in the spirit of this group for the noble Lord, Lord Baker, to have mentioned this important issue about the independence of trustees. I am sure that most of your Lordships are trustees of some charity or other, or multiple charities, and so do not need reminding that pretty much the only thing you are asked to do as a trustee, first and foremost, is to put the charitable aims first, above anything else. There are then various other good governance and financial probity things you do, but the charitable aims are everything.
As academy trustees, we now find that we have a funding agreement with government, we are subject to direction from government, and we are now subject to being able to be removed by government, all within a statutory framework; the sense that there may be any kind of independence for trustees in that context, and that they are more than agents of the state, will be very difficult to sustain.
Should it not be appropriate for the Minister to reply instantly to what the noble Lord, Lord Baker, has said, it will be important for us to see some legal advice from government that the charitable status of academy trusts will not be threatened by the further encroachment of the Secretary of State in the operation of these organisations.
My Lords, following on from the comments of my friend the noble Lord, Lord Baker, the difficulty seems to be that we are discussing these matters in a vacuum. It will be very interesting to hear the Minister’s response to the point that the noble Lord raised. As I said on the first day in Committee, the Minister said at Second Reading that she was launching a review to
“establish the appropriate model and options for how best to regulate the English schools system”.—[Official Report, 23/5/22; col. 740.]
The question I put to her is this: how on earth can we deal with the substantive issues raised by the noble Lord, Lord Baker, if we simply do not know how these schools will be regulated in the future? If ever there were a case for pausing a Bill, this is it.
My Lords, I will make a couple of observations. First, I strongly agree with the noble Baroness, Lady Chapman, and the noble Lord, Lord Knight, about the grouping of the amendments today; it is so random as to be almost impossible to fathom or follow. I give the benefit of the doubt to whoever arranges these groups, but if the aim is to throw sand in our faces and make the job far harder then there will be trouble when we get to the voting stage.
I turn to a couple of specific amendments. On Amendment 30, my noble friend the Minister admits that this power exists already. The Academies Act has been in place for some 10 or 12 years; why are officials just working this out only now? How many other parts of the Bill have that issue? I think the answer is that a great many do.
Amendment 43 wants powers to terminate agreements with trusts, but, again, there is already the power to remove a school from a poorly performing trust on an Ofsted judgment of special measures. There have been plans and talk about extending that to what is called RRI—that is, two successive RI judgments. Why is that not being done? This does not need legislation as far as I am aware.
To sum up the points made by the noble Baroness, Lady Garden, and the noble Lord, Lord Hunt, we are discussing this in a most extraordinary vacuum. There has been no consultation on the Bill and we have had no sight of regulatory review, yet we are plunged into these incredibly technical, idiosyncratic clauses. All of us share the concern to improve children’s educational outcomes. That is why I maintain my position to seek to remove most of these clauses, so that the Government can step back and rethink.
My Lords, I want to raise a point probably connected to the comments of my noble friend Lord Baker, which may help my noble friend the Minister. I raised on the first day in Committee the consideration of the legal vehicle that we are dealing with here, which is potentially affected when you move from the bilateral to the unilateral, and any implications for not just charitable status but the role of charity trustees, as well as that of company directors, as in most cases these are charitable companies. I know that my noble friend intends to write to me, but it may be that the comments that follow from that have a connected purpose to what my noble friend Lord Baker has said in relation to any effects on the charitable purpose as well as the vehicle. We are dealing with a legal entity, and the implications for that need to be fully considered in the change from a bilateral contract to the unilateral situation that my noble friend proposes.
My Lords, I declare my interests as a chair of an academy trust and as a trustee of the Education Policy Institute.
I shall give a little background on trustees and their role and recruitment. When I became an academies Minister in 2013, it was clear that the very good initiative started by the noble Lord, Lord Adonis—who I see is not in his place—to find academy sponsors, such as myself and my noble friends Lord Agnew and Lord Baker, had been put very much on the back burner by officials in the rush to academise; it took a very long time to warm these people up and it was a long process. I said I did not care how long it took to warm these people up; we must have this process. I did not care if we got chucked out of government and the Labour Party came back in and used all the people that we had found—good luck; it is a very noble purpose.
As it happened, we did not find too many nutters like myself and my noble friend Lord Agnew who were prepared to go from a standing start to being full academy sponsors in one move, but we found hundreds, if not now thousands, of people who were prepared to go on the boards of multi-academy trusts as non-executive directors, pro bono, to serve a very good public purpose. I wonder how many we would have found if they knew they could be chucked out by the DfE at its whim.
My Lords, it is really something for me to say that I agree with most of the noble Lords opposite on this. It is a very odd Bill and a very odd process that we are going through today.
One question that comes to mind when we look at all these amendments is this: could the Minister give us a rough idea where the Minister’s power to make a decision without consultation has been increased or decreased? If there is anywhere that that power has been decreased, I would be very glad to hear about it. But if it is only the case that “We will make something without going through a consultation process”, surely that shows up one of the major flaws in the Bill.
I echo the comments that have been made in support of my earlier intervention. It seems extraordinary that we are grouping these amendments together. I have not been in this House for too long but my understanding is that this is quite unusual.
One example is government Amendment 148, introducing the new offence. One of the jobs I have had was shadow Justice Minister, and I know that something like this would have been subject to a lengthy debate in and of itself were it part of a Bill that the justice team was proposing. I refer noble Lords to paragraph 1(3)(a) of new Schedule A1, as introduced by Amendment 148, about new childcare and behaviour orders. I think these are a very good idea; if you are found to have been running an illegal school, there should be restrictions on what you are able to do in future. We are not arguing with the principle of that, but paragraph 1(3) of the new schedule says:
“An education and childcare behaviour order is an order which, for the purpose mentioned in sub-paragraph (2) … requires the defendant to do anything specified in the order”.
I cannot find anywhere—perhaps the Minister could direct me, because it is not impossible that I have missed it—an example of what is specified in the order. That is a very broad definition that gives courts enormous freedom. I would like to understand better what Ministers have in mind for courts to be able to do. That is just one example of where this really does not fit with some of the other issues that we have just been debating regarding secure academies and charitable purposes.
I would like a commitment from the Minister that, should there be further government amendments that are not minor or technical—there is no way that you could describe this amendment as either—she will ensure that they are tabled in a timely manner and in a way that facilitates consideration in your Lordships’ House. I feel that we are not sufficiently able to do our job as well as we would like today, given the way that this has been done.
I echo the comments from the noble Baroness, Lady Garden, about secure schools, from my noble friend Lord Knight about the independence of trustees, and from the noble Baroness, Lady Berridge, on charitable purposes.
To be positive towards the Minister, I very much welcome the tone of the comments that she made at the end of our deliberations last Wednesday, when she said she would reflect and listen very hard to what the House was telling her. I wonder if there is anything she can say today, before we embark on subsequent groups of amendments, that we would find useful about how far she has got with those deliberations.
My Lords, I thank your Lordships for your contributions. I confess to being puzzled about the concerns on groupings, because those were agreed through the usual channels. Colleagues will obviously have heard the concerns expressed today, but we did go through the normal process and were not aware of some of the points raised.
My Lords, with the greatest respect, I say that the Government put those amendments into one group. Only movers of amendments can remove amendments from them so, as far as ordinary Members of the House of Lords are concerned, we were presented with a fait accompli about which we could do nothing.
As the noble Lord heard me say, this was agreed through the usual channels where we could have discussed that, had serious concerns been raised. The point has been heard loud and clear but I wanted to give the context. A number of points have been raised which I will aim to address, but I start by thanking the right reverend Prelate the Bishop of Bristol for her support on Amendment 40.
I turn to Amendments 76A and 76B tabled by the noble Lord, Lord German, and presented today by the noble Baroness, Lady Garden, in relation to Amendment 76 in my name on secure schools. Regarding Amendment 76A, the Government remain open to considering any objection to the opening of a secure school. We expect that if the question were framed in this way, however, most local concerns about opening a secure school would focus on its custodial nature. These concerns may very well be valid. However, the secure school provider is not realistically able to address issues with the fundamental character of the school. Instead of consulting on whether a secure school should open, we propose that the provider must consult on how it should work with local partners. That, we hope, should ensure that the consultation is focused on issues that the provider is empowered to address.
Connected to this, Amendment 76B, which proposes to include local government in the consultation requirement, would not result in any material change. This is because the secure school provider must consult on how it will work with local partners, and the definition of local partners that we have used already includes any person
“whose functions are functions of a public nature”,
as set out in Section 6 of the Human Rights Act 1998. The noble Baroness asked if there were any changes in relation to planning. There is clearly no intention to evade planning regulations. She also asked whether the position of the local authority had changed. Of course, more broadly, the position of local authorities will change, given that we intend to give them powers to set up multi-academy trusts, which they have not historically been able to do.
The noble Baroness, Lady Chapman, raised concerns about the potential scope of the proposed education and childcare behaviour orders, while welcoming the principle behind them. I reassure her that while these orders have been designed to be broad in scope, their use will be focused. The court can exercise discretion to impose an order only if it considers it appropriate to do so, and it would be appropriate only for the purposes of protecting children from the risk of harm arising from a defendant re-committing an offence of conducting an unregistered independent educational institution.
We intend for these orders to prohibit activities taking place only in specified settings at specified times of the week, rather than them being a sweeping power. In sentencing, the courts must do so proportionately, so it is not our intention that these orders should prohibit someone working in a setting that is already subject to another regulatory regime. Other regulatory bodies, such as the Teaching Regulation Agency, may wish to take action against those found guilty of conducting an unregistered school but these orders are not designed to interfere with that work. Their aim is to prevent the behaviour which has led to some being prosecuted for conducting an unregistered school, not to interfere with someone’s activity beyond that.
I am grateful; that is helpful. Does the Minister intend to publish any guidance or examples? At the moment there is nothing, as drafted, to say whether these orders will be about someone’s professional ability to engage in running an illegal school or if it will impinge in other areas of their life and their contact with children. There is nothing to give us any guidance about this at the moment.
I undertake that we will provide guidance—in inverted commas—whether that is formal guidance or setting out examples in a letter as the noble Baroness suggests. I will need to check with colleagues as to the most appropriate way to do that. I am happy to undertake that we will provide a full explanation, as she rightly requests.
My noble friend Lord Baker, the noble Lord, Lord Knight, and others, questioned whether the measures in the Bill would affect an academy trust’s charitable status. I am pleased to confirm that the Government have engaged with the Charity Commission about the intervention powers, including the termination provisions in the Bill. There are currently no concerns about the interaction of these powers with the independence of charities. My noble friend Lady Berridge raised a very pertinent point again. I reassure her that her letter is in preparation as I stand here.
Through the schools White Paper, the Government set out their vision to deliver real action and level up education, supporting children, empowering teachers and school leaders and enabling parents. This Bill and these amendments help deliver that vision by underpinning it with legislation focused on improving the systems and standards of schools. I commend the amendments in my name and ask the noble Baroness, Lady Garden, not to move the amendments in the name of the noble Lord, Lord German.
Amendment 30 agreed.
Clause 2, as amended, agreed.
Clause 3: Academies: power to apply or disapply education legislation
31: Clause 3, page 4, line 2, leave out subsection (1)
My Lords, when we come back to this, we come back to our old friend the Delegated Powers and Regulatory Reform Committee and its second report of the 2022-23 Session. The report is all about the Bill and the things that are wrong with it. Primarily, this amendment is inspired by the last paragraph, which states that
“The Henry VIII power in clause 3(1) is too wide and should be removed from the face of the Bill”.
That is as damming an indictment to any piece of legislation as I have seen in three and a half decades here; it says that the Government have this horribly wrong. Nobody thinks that this is the right way to go about things.
The title of the clause—“Academies: power to apply or disapply education legislation”—is an incredibly wide starting point. Could the Minister give us a little more clarity and justification about why the Government think something like this is needed? We have not got much else on this first part of the Bill. We cannot really disagree with the Government because we are disagreeing with assumptions about things that might happen. That is where we start from. If the Minister—I wish her the best of British on this one—can convince us that we have got this wrong and there is nothing to worry about with it, then half of us can go home.
I hope—because hope empowers more than expectation—that we will get some reply here. I am calling to leave out Clause 3(1), but you could take a knife to any part of this and it would improve the Bill. The whole thing probably should go and, indeed, if someone were to ask me and it were the appropriate time, I would be voting for that to happen. However, I give the Minister one chance here to finally say why we need Clause 3—or any bits of it. I could jump up and down, make longer speeches and read out the report to noble Lords, but I think that this is enough. I beg to move.
My Lords, I rise to speak in place of my noble colleague the right reverend Prelate the Bishop of Durham, who cannot be here today, to his Amendment 33 and to declare his interest as chair of the National Society, and also to speak against Amendment 34A.
Amendment 33 to Clause 3
“ensures that the religious designation of church schools could not be removed by secondary legislation.”
The Church of England provides 4,700 schools, so we take seriously our vision that we are deeply Christian and serving the common good. This vision is for the whole community but is built on the firm foundation of the character of our church schools, which is central to that vision. I again pay tribute to the Minister for the way that her department has valued this character and worked with us to ensure that it is safeguarded in this legislation. We believe that this amendment strengthens that intention and provides a further safeguard.
A necessarily broad approach is undertaken in this Bill in applying legislation for maintained schools to academies through amending regulations. While we can appreciate the need to do this, it is unusual to see primary legislation which enables power to be applied or disapplied by secondary legislation. This short amendment would ensure that the “religious designation” of
“schools could not be removed by secondary legislation.”
I appreciate that Clause 3(3) provides for the protection of the status of an academy “with a religious character” by prohibiting regulations for
“arrangements for collective worship and the provision of religious education”.
However, these are just some of the outworkings of the religious character of a school, and we believe that this additional safeguard is necessary to safeguard the very designation of its character. It would be inappropriate to allow secondary legislation to have such impact on the designation of character of so many schools. This is a significant issue for our schools, and I will be listening with interest to any assurances on this topic that the Minister can provide.
I want also to speak against Amendment 34A. While I support this amendment in principle, as drafted it does not include stakeholders in the list of relevant bodies for consultation. Church schools are not included, but they represent a third of the sector and therefore should be included in the consultation.
We see that this group concerns the Secretary of State’s power to make regulations for any education legislation to apply to academies. Thus, some may see this as redressing the balance between academies and the maintained sector.
I am speaking to our amendments, beginning with Amendment 34A, which prevents the Secretary of State using these
“powers to apply or disapply education legislation”
until they have been consulted on with
“headteachers, governors, academies, and pupils”.
I will pick up the right reverend Prelate the Bishop of Bristol’s point, which could be a useful addition, so I thank her for raising it with us. Of course, consultation is the key to good governance and, if there is a sense of imposition from a distant central source, then legislation will never be as good as it could be or implemented in the way it should be.
Furthermore, our Amendment 35 removes the Secretary of State’s power to apply legislation
“relating to further education colleges to academies”
by removing “further education” from “the definition of ‘educational institution’”. As it stands, these clauses signal a further power grab, empowering a future Secretary of State unilaterally to remove religious designation from a faith school, as noted in the right reverend Prelate the Bishop of Durham’s Amendment 33.
In line with previous approaches, the Bill is silent on what education legislation they would like academies to be subject to. Despite the Minister’s attempts to reassure the House, we continue to be unclear why the Secretary of State is taking these powers. If the Government listed which Acts they are considering, we would be able to have a debate. That is why so much of what we are hearing has a déjà vu aspect to it. We are struggling to find areas of discussion and scrutiny because there is so little evidence of this in this wafer-thin Bill. Where is the legislation, for example, on teachers’ pay, which does not currently apply to academies? National terms and conditions should be a prerequisite for the profession, so that teachers can once again have the security of moving between schools and sectors without a serious dilution of rights, as noted by my noble friend Lady Blower in last week’s Committee debate. As it stands, these powers are not justified and should be amended. I will say no more because, as the noble Lord, Lord Addington, noted, there is very little else to say.
My Lords, I am slightly confused about the order of this but I thought it was really important that we heard the noble Baroness, Lady Wilcox, introduce the amendments. I want very briefly to speak for the Green group and to agree entirely with the noble Lord, Lord Addington, on the desire to throw all these provisions out. I also very much want to commend the noble Baronesses, Lady Chapman and Lady Wilcox, for attempting to clarify and improve the Bill. In particular, Amendment 34A is terribly important.
In our debate last week, I highlighted the amazing lack of the words “parents”, “pupils” and “communities” in the Bill. I really commend the noble Baronesses for putting consultation with pupils in here—a principle that needs to run right through the Bill. We do not want the Secretary of State to have the power to make these decisions but if that were by some miracle to stay in the Bill, it is really important that we have consultation measures. The fact that pupils are included in this consultation is a really good principle to build into the Bill.
My Lords, I wonder whether I might assist the noble Lord and the Committee. I just want to make it clear, purely procedurally, that Clause 3 stand part will be put as a Question once this group of amendments has been discussed. It has not yet been put as a Question; however, it was discussed, as the noble Baroness, Lady Penn, just said, as part of an earlier group on the first day in Committee.
I thought that in fact, with great respect, in the earlier debate we debated Clauses 1 and 4, which are no longer there. Amendment 35 states specifically that:
“The above-named Lords give notice of their intention to oppose the Question that Clause 3 stand part of the Bill.”
My Lords, it may be the Marshalled List that is causing confusion. We have Amendment 35 on the Marshalled List, which we are discussing in this group, and then we reach Clause 3 stand part, which is separate to that. As I said, we debated it in a group on the previous day but as the Deputy Chairman said, we have not put the Question on that yet. I believe we will come to that after this group.
My Lords, I shall now speak to the group of amendments relating to Clause 3, ahead of the question being put on whether Clause 3 stands part of the Bill.
First, I shall speak to Amendment 31. In response to the noble Lord, Lord Addington, I begin by reassuring the Committee again that I have fully heard the concerns that have been expressed about the Henry VIII power conferred on the Secretary of State by Clause 3, including those, importantly, from the Delegated Powers and Regulatory Reform Committee. We are carefully reflecting on what noble Lords have said today on the matter, as well as on the report from the committee. Any use of the power in Clause 3 would be exercised by the affirmative procedure and, as we will cover in relation to Amendment 34, the Government will consult on any new regulations.
Academy trusts are already subject to many of the same requirements as maintained schools, set out in numerous pieces of primary legislation. We want to consolidate these requirements on trusts as much as possible into the academy standards regulations. This will be a gradual process, and we want to work with trusts on the implementation of the standards at a pace which is right for them. As we move towards a school system in which all schools are academies within strong trusts, we want to ensure that the legal framework is fit for purpose, including by removing requirements should they prove excessively onerous or unnecessary. Clause 3 enables the Secretary of State to make these adjustments, subject to the affirmative procedure, and to be responsive to the changing needs of the system.
I do not know whether it is the Committee’s problem, but it is my problem, as I do not understand how this enormous tidying-up process, if it should be called that, has any connection with improving the education of our children. We need some fundamental explanation as to what is perhaps marginally wrong, if I have heard right, and of why this has any real prospect of making any real improvement.
My noble friend is right—the thing we should principally be concerned about is improving the education of our children. I will be more than happy to meet my noble friend or any other noble Lord who wants to go through some more of the work that we are doing in relation to that, as was set out initially in the schools White Paper. As I said in the introduction to one of the groups on day one of Committee, this Bill needs to be seen in the context of the wider work that the department is doing and that Ministers are leading in relation to a commitment to improving outcomes for our children, which my noble friend absolutely rightly says should be pre-eminent.
The Minister said at the start of her summing up—and it was about the 20th time she had said it—that she had heard the concerns of Members, would reflect on them and would come back. To be honest, unless she gives us some indication as to when she is going to come back and what she is going to say, we are going to have this at every turn. The noble Viscount who has just spoken is right. My noble friend asked about this with the first amendment—and, since the statement at the end of the first day in Committee, I am sure that she has reflected on the views of the House. What conclusions did she come to? Is she able to tell us now? If not, when will she be able to tell us? Then we could perhaps use the time available to us much more constructively.
Tempting as it is to take power into my hands and give the noble Baroness the answer straightaway, she knows very well that this is something we need to agree more broadly within the department. As soon as that is done, of course I look forward—that is an understatement—to updating the House.
In the debate last week, I was delighted to commend the wisdom and clarity of the noble Viscount, Lord Eccles. If it is impossible for the Minister to say anything more about how this process is going to proceed, she may find herself with requests for any number of meetings with the noble Viscount, but also with any number of people from these Benches, because how we are proceeding does not really seem to be comprehensible or explicable. If we are actually interested in improving things for children and young people through the education system, there is something different we should be doing.
I apologise to the noble Baroness. I do not think there is much I can add beyond what I have already said, which is to underline that as soon as I can clarify further, I will.
Turning to Amendment 33, I thank the right reverend Prelate the Bishop of Bristol for moving this amendment on behalf of the right reverend Prelate the Bishop of Durham. As she knows, the Government are a strong supporter of schools provided by the Church of England and by other religious bodies. We believe strongly that they bring great richness and diversity to our school system. That is why we have included measures in the Bill to ensure that statutory protections are in place for academy schools with a religious character, to ensure that their unique powers and freedoms are appropriately safeguarded. The power to designate a school with a religious character is already enshrined in existing legislation. I give a clear commitment that the Government will not use the powers in Clause 3 to affect the designation of academy schools with a religious character.
I appreciate that the right revered Prelate’s concern extends beyond the intentions and commitments of this Government. However, we are committed to ensuring that schools with a religious character remain an important element of our school system in the future. I offer my reassurance that we will give further consideration to ensuring that the powers in Clause 3 could not be used to undermine this.
On Amendment 34A, in the name of the noble Baroness, Lady Wilcox, I am willing to make a commitment on the Floor of the House to your Lordships that the Government will always undertake a full consultation with representatives from the sector prior to any regulations being laid which exercise the power in Clause 3. Those regulations will also be subject to the affirmative procedure.
On Amendment 35, in the names of the noble Baronesses, Lady Chapman and Lady Wilcox, by removing further education institutions from the scope of this power, we would lose the ability to make these adjustments in relation to 16 to 19 academies, with the possibility that we could introduce complexity to the regulatory framework rather than streamlining it. On that basis, I ask the noble Lord to withdraw his amendment and other noble Lords not to press theirs.
My Lords, really, this is something of a hangover from day one—something I think the noble Baroness, understandably, would best like forgotten. I am still not clear why, when Clause 3 has been so heavily condemned, we are not saying, “Let’s get rid of it and try something else.” The undertaking the Minister has just given about consultation is welcome, but we should not need it, because we should know what we are getting into: it should have been discussed in Parliament, in detail, going through the full process. Also, an undertaking to consult comes back to the old point: I am sure this Minister will stand by it—she is an honourable person, as she has shown in her conduct over this—but we do not know who is coming next; we do not know who is giving the orders next.
I refer noble Lords to my earlier comments that it is not this Secretary of State but the nasty one round the corner. This is why we have things in legislation that we can discuss and refer back to. Clause 3 in this Bill removes that safeguard and means that we do not actually know what we are doing. It also gives an awful lot of power to anybody who takes on that position.
If we are to continue in this way, the sittings of this House and indeed Parliament as a whole are going to get a lot shorter, because there will not be much to do. If it is all going to be by regulation, which they do not want us to vote against—I know I am repeating myself, but why not?—what else can we do? There will be a series of negative Motions, as I think the noble Lord, Lord Hunt, pointed out, to which the Government will say, “Oh well, never mind” and move on. We have got to get something more solid down here about what the Government’s intentions are. At the moment, we are in the position of not knowing whether we disagree with them or not. We suspect it, but we do not know, and we do not know what is coming next time.
When the Minister goes back to her department—and I think the noble Baroness, Lady Penn, going back to the Chief Whip may be even more applicable here—will she make sure that they know just how unsatisfactory we are finding this? Otherwise, we are just going to have a bit of a carve-up on Report, and then we will be accused of being unconstitutional, and then we can chase each other round the Houses, and then everybody remembers that the Bill is a Lords starter. I hope, if we are not going to be wasting our time, that we actually do have something solid that removes Clauses 1 and 3 from the Bill and replaces them with something sensible.
Having said that, observing the convention that we do not deal with these things now but on Report, I beg leave to withdraw the amendment.
Amendment 31 withdrawn.
Amendments 32 to 35 not moved.
Debate on whether Clause 3 should stand part of the Bill.
My Lords, I remind the Committee that this Question was debated in the first group of amendments on day 1 in Committee. The Question is that Clause 3 stand part of the Bill.
I was reminded earlier by the Minister that there was a debate on Clause 3—I remember it very vividly—on the previous day. In fact, that was when the noble and learned Lord, Lord Judge, who is the Convenor of the Cross Benches, said it was outrageous and should be deleted from the Bill, but I do not remember an actual Motion being mentioned on Clause 3. I do not see Clause 3 mentioned in any of the amendments from 1 to 35. Clauses 1 and 2 were, and Clauses 1 and 4 were dealt with on Wednesday.
My Lords, with the greatest respect to the noble Lord—I very much agree with the thrust of what he has said—I actually did have a Clause 3 stand part notice, to which the noble Lord signed his name, so I think we did debate it. Our problem is that we want to debate it again, and when we come to the fifth group, we shall want to debate it again and again and again.
Does the noble Lord wish to continue to discuss Clause 3 stand part?
I would like to. Clauses 1 and 3 are crucial parts of the Bill, and Clause 3 extends the power of the Secretary of State quite considerably. If I could draw attention to Clause 3, this allows the Secretary of State to apply or disapply education legislation almost at will, because the whole relationship between the Secretary of State and the school has now been changed. It has moved from a contract relationship, which we now have, where both sides can argue—and eventually, if necessary, go to law—to one of statutory imposition by the Secretary of State. That is why Clause 3 is very central; it is as important as Clause 1. That is why the noble and learned Lord on the Cross Benches spoke against it.
Obviously, I will not divide the House in Committee, but if the Government still come back with these sorts of clauses on Report—which I think they hope to take in July—my noble friends Lord Agnew and Lord Nash and I will table all these amendments again and will seek the opinion of the House on them, because this is essentially a constitutional Bill. That is what this comes down to. The power of the Secretary of State is being enhanced in a way that has not happened since 1870, and that has not been done with consultation or any sort of examination.
I am amazed, with the success that my noble friends Lord Agnew and Lord Nash had in dealing with failing schools, that I was at the receiving end—I had to defend my UTCs and all the rest of it, so I saw how well they worked. Actually, they were quite reasonable people to deal with. Some things we agreed on, some we did not, but at least I had a legal status. In fact, the Government changed their view only when I threatened them with a judicial review, because my trust could afford to pay for that. Then they changed their view, and I think as a matter of revenge the department has said, “Well, we’ll now take such powers that we’ll be able to use them willy-nilly, and make them completely our powers and not resistant to judicial review or anything.” This was only because my charity could afford go to judicial review, whereas an individual school that is threatened with closure under this Bill would not have the ability to do that, nor would a governing body take the Secretary of State to judicial review. This is really a sort of revenge act by the department for losing out against me in order to give it quite incredible statutory powers. I really do not think the House should accept this, but, of course, I will not divide the House today.
Since the noble Lord has raised the issue of Clause 3 standing part of the Bill, I wonder whether I might add a few remarks in the form of a question to the Minister. Unusually, the debates on this Bill in your Lordships’ House appear to be attracting the attention of the media, which very rarely happens, because people have suddenly noticed that these are extremely wide-ranging powers that have the potential to transform the whole educational landscape in England. One of the commentaries I read said that the person most frequently mentioned in the debates on this Bill so far has been Henry VIII. He has been much more frequently mentioned than the Secretary of State or any of us who are former Ministers, and so he appears to have been the principal author of this Bill. I think the remarks that the noble and learned Lord, Lord Judge, made last week are what the media are latching on to.
In trying to understand the Bill, I have a question for the Minister. My understanding of Clause 3(1) is that it would give the Government the power to override any existing admissions arrangements for an academy by ministerial direction. This is quite significant, because, as those of us who have laboured in this territory know, there are 101 varieties of non-selective admissions, and in respect of academies there are different forms of banding and inner and outer catchment areas—all these things—which are hugely important to the relationship between the school and its community which are usually brokered. I know that some people think that academies operate in a vacuum, but they do not; these arrangements have generally been very intensely negotiated, including with local authorities, to see that there is fairness between schools and so on.
My reading of this clause is that it will give the Government the power to override all the funding agreements in respect of admissions, in a way that may be very ill-thought through, just because a particular Minister or Secretary of State takes against one form of banding and wants a different form of non-selective admissions. This would completely subvert arrangements which, for very good reason, have been entered into between sponsors, multi-academy trusts and previous Ministers and would effectively override the whole contractual basis on which sponsors have taken responsibility for the management of schools. That is my reading of Clause 3(1). I know that there are ongoing discussions, which I have not been party to, but could the Minister confirm that this would give the Government the power to override any existing admissions arrangements set out in a funding agreement? If that is the case, I think Henry VIII has made a dramatic reappearance in the affairs of the Committee this afternoon.
I thank your Lordships. I will keep my remarks extremely brief, because we covered many of the points raised this afternoon when we debated this clause on the first day of Committee. If I may, I will write to the noble Lord on his question regarding admissions arrangements and set that out in detail. I ask my noble friend if he will consider withdrawing his remarks about the department taking revenge. It does not take revenge on anybody or anything. It works to serve Ministers to the best of their ability.
Clause 3 agreed.
Schedule 1: Application of maintained school legislation to Academies
35A: Schedule 1, page 88, line 28, at end insert—
“33A In section 88(1)(a) of the School Standards and Framework Act 1998, after “in relation to” insert “an Academy or”.”Member’s explanatory statement
This is to make academies subject to the guidance from local authorities on admissions.
My Lords, Schedule 1 applies the maintained school legislation to academies, as set out in the controversial Clause 3 that we have just been discussing. My amendment seeks to make academies subject to guidance from local authorities on admissions, so that they are the same as maintained schools. Here I probably part company with some of my new allies on the Benches opposite in my vision for academies, but so be it.
The starting point for me in thinking about this is my vision for local authorities in respect of the provision of education and schooling. I see the fundamental role of local authorities as safeguarding children’s interests in the area in which they have jurisdiction, rather than the interests of the schools that they might run. If we are going to move to every school becoming part of a strong multi-academy trust, as is the direction of travel and the Government’s intent, then they will not be operating schools. It is important to avoid that conflict of interest.
When my noble friend Lord Adonis first began the academies programme, as I recall, the arguments I was making in his defence in the other place concerned the notion that, in some cases, there are local authorities which are operating—and have been operating for generations—schools that are failing. There was a fundamental problem for them in calling out their own failure, which is part of why I am very nervous about the direction of travel, with the Secretary of State running all the schools in the country. The Secretary of State might ultimately become nervous about calling out the failures of all the schools they are responsible for.
If the local authority is to become the guardian of the interests of the children in its area, it is right that it should become accountable for fair local admissions for parents. In an environment where every school is an academy, every academy school should be subject to guidance from the local authority on admissions. My noble friend Lord Adonis just talked about the 101 varieties of admission arrangements. Nerdy people like me might understand them, but this is a real problem for parents, particularly parents of year 6 children.
Year 6 begins with parents starting to get their head around what school their child will go into year 7 at. They then have to grapple with banded admissions over here, some kind of attainment test over there, schools that are not that popular where you can get in if you just put them on the list, and schools that are popular and that attempt some kind of fair admissions. Then there are schools that have some faith-based admissions, and there is then the question of whether you have to go to church, the synagogue, the temple or whatever on a regular basis to be allowed into those schools; in some cases you might and in some you might not. It is deeply confusing for parents. I like the idea that they would hold their local council representatives responsible for making that process somewhat easier. I see that my noble friend wants to say something.
I am itching to say something, because what I am hearing my noble friend describe is that the best system we can envisage for the management of our schools is for them to be locally managed with a common admission policy across a group of schools in an area. That is the system that has been slowly dismantled, it has to be said, by the development of academies.
That is where I part company with my noble friend, in that I am relatively comfortable with others managing the schools, but with that management being accountable to local authorities and part of that accountability being managing the admissions process for all the schools in their area.
Another problem I see in a minority of cases of those schools that are their own admissions authority is that they are trying to find ways to choose pupils: rather than parents choosing schools, it is schools choosing parents. That is strongly related to accountability. Accountability for public funding and for delivery of school services is really important and I do not want to dilute that in any way, but the danger is that we end up with schools trying to ensure that a standardised pupil comes in who their whole curriculum and way of operating fits, so that they have the best chance of success.
In that respect, I commend to your Lordships a book by Todd Rose, an academic at Harvard, called The End of Average, which begins with a great story of the US Air Force when it first introduced fast jets. They kept crashing and the air force did not understand why. It worked out that the reason was that they were all designed for a standard dimension of pilot, so the controls were in slightly awkward places and the split-second timing required for fast jets meant that a lot of them crashed. That is why we now have adjustable seats in our cars, so that we can adjust to the different dimensions of people. The danger I see is that, thanks to our system of accountability, we have that problem of standardisation, with schools trying to admit pupils of standard dimensions, so to speak.
I point your Lordships to a problem I have seen in the London Borough of Lambeth, where a multi-academy trust, the board of which I chair, has a secondary school academy called City Heights. We were approached earlier in this school year about reducing the pupil allocated number for City Heights. It was not a unilateral conversation: the local authority approached all the secondary schools in the area, because the predicted demand for school places was coming down and it needed to reduce the provision of school places across the borough. All the secondary schools agreed verbally, informally, that they would reduce their PAN proportionately to accommodate that reduction. What happened when, finally, the proposals were formalised and agreed? Two of those schools, which happen to be two of the more popular schools—two academy schools—increased their PAN so that they could get more money in and continue their story of success, but at the expense of all the other schools which had played ball and tried to do the right thing with the local authority. That kind of practice needs to be sorted out, and this is an opportunity to do so.
We see some problems about fair in-year access, where pupils need to get admitted into schools in-year. We see some social selection by schools that are their own admissions authorities: things such as very subtle boundary changes, where it is hard to spot what they have done, but they happen to have cut out a social housing estate or done something else that just makes it a little easier to select the standard pupil that they are designed for. There might be elaborate religious criteria, as I mentioned. There might be talk in their prospectus of these great school trips that everyone will be expected to contribute a load of money to. That is part of the social selection that can be the practice of admissions authorities that bothers me.
This amendment would lead to fairer admissions, provide more local compatibility with the 101 varieties of admissions arrangements going on within a local authority area, particularly primary feeders, and restore confidence among parents in our admission system where that small minority of schools which abuse it and try to choose parents are undermining that confidence and we need to put it right.
This group has a number of other amendments in it; I will not attempt to speak to them all. I am supportive of my noble friend Lord Hunt’s amendment on grammar schools. I will not anticipate his comments but, when thinking about what he might say, I was reminded of a wonderful passage in an interesting, really great book written by Tim Brighouse and Mick Waters, About Our Schools—it is a huge tome of a thing but I commend it to your Lordships—about some of the early private hospitals. They had criteria around what patients they would select, in essence, to make their job easier: if you could admit only patients who were not that sick, you would be a really successful hospital. Similarly, if you admit only pupils who are already pretty bright, your job is really straightforward, but it leaves the rest of the schools with a real problem that you then have pick up with the majority.
My Lords, the Clause 28 stand part notice is in my name. Because it is about grammar schools, I think it is right to have it in this group, in talking about admissions policies.
I very much empathised with my noble friend Lord Knight when he spoke about the traumas of year 6 for not only the children who have to take SATs but the parents who have to choose—or attempt to choose—a secondary school for their children. It was also interesting to hear about the parallel between private hospitals choosing their patients and schools choosing their pupils. Often, the difference between health and education is that, in the main, our best hospitals are based in urban areas, with some of the poorest people, serving them. In a sense, I am not sure that education has ever quite been able to pull off the support that the health service has often given to the poorest and most deprived people, imperfect though that may be.
Clause 28 is concerned with grammar schools and academies but it has prompted me to ask the Minister a wider question: what is the Government’s general policy in relation to grammar schools? We know that, in 2016, the then Prime Minister, Theresa May, said that she wanted to allow for an expansion in grammar schools. It was in the 2017 manifesto but nothing appeared in the Queen’s Speech; more recently, the Government have said that they do not want to see an expansion in the grammar school system. However, rumours and briefings often come out saying that, actually, the Government would like to see a change in policy.
We have already seen a number of so-called satellite grammar schools open or get under way. Basically, this is a back-door way of expanding the grammar school system. Satellite schools bear the same name as the host grammar school. They are often located several miles away. Eventually, of course, it will lead to two separate schools being established. We know that the county council in Kent seems determined to expand its selective schools despite all the evidence showing that the Kent system is a poor one in terms of overall outcomes for the whole of the student population. Grammar schools in Kent do nothing more than attain the results that you would expect if you selected for high attainment—hence my noble friend Lord Knight’s comment about schools choosing their pupils.
As Comprehensive Future has stated:
“What is there to stop any grammar school from creating a whole chain of satellites stretching from Northumberland to Land’s End?”
This is not an academic argument because there have been suggestions that the Bill could be amended by Conservative MPs when it goes to the Commons. The Evening Standard has reported that the Government refused to rule out lifting the current ban on new grammar schools, while the Telegraph has reported that the Government are open to expanding academic selection. Indeed, Chris Philp MP was quoted as referring to his plans to amend the Schools Bill to support new grammars. Can the Minister clarify the Government’s exact position?
I am afraid that I am old enough to have experienced the wretched old grammar/secondary modern system, and the 11-plus, which condemned so many children to be classified as failures at the age of 11 and to be sent to schools with fewer resources and less ambition. That is why the move to a comprehensive system was so popular. It is interesting that the movement started in some of the shire counties. I lived in Oxford, and Oxfordshire and Leicestershire were determined to get rid of grammar schools in the 1950s and 1960s because they did not want all their children to be branded as failures at the age of 11. In 1953 and 1957, Leicestershire started to experiment with comprehensive education, expanding it throughout the whole county in 1969. Oxfordshire started in 1955 and 1957, subsequently expanding throughout the whole county as well.
Why did parents support this? It is very simple. Those arguing for grammar schools present only the image of children passing the 11-plus and going to grammar schools, and their subsequent achievements. They do not refer to the large number of children—around 70% in Kent—who are told aged 11 that they are failures and then attend underresourced secondary moderns. There is plenty of research to show that in those areas with a grammar school system, achievement is lower. Look no further than Kent and Buckinghamshire. Grammar school systems continually and consistently undermine educational achievement. According to the DfE, in 2019, the GCSE pass rate was 11 points below the national average in Kent and five points below average in Buckinghamshire.
Claims that grammar schools give a foot up the ladder for poorer children have, again, been debunked comprehensively. Research by the Institute for Fiscal Studies shows that in the remaining grammar schools, the percentage of pupils from poor backgrounds is lower than ever: 2.7% are entitled to free meals, against 16% nationally. Once the pupil intake of grammar schools is taken into account, based on factors such as chronic poverty, ethnicity, home language, special educational needs and age in year group, Durham University analysis shows that grammar schools are no more or less effective than other schools.
Finally, the poorest children in Kent and Medway have a less than 10% chance of getting into grammar schools, while for children in the very richest neighbourhoods, it is over 50%—schools choosing their own pupils. I want the Minister to say that there is no intention of changing the policy with any amendments that any Conservative MP might seek to move in the Commons, although whether the Bill reaches the Commons is a question that we are all interested in. Assuming that it does eventually reach the Commons, I hope that the Government will say today that they will have no truck with that.
My Lords, my name is attached to Amendments 78 and, with my noble friend Lord Storey, Amendment 162.
Amendment 78 deals with the issue that we were discussing earlier about the provision of school places by academies. It says that the Secretary of State must, within six months of the Act being passed, make regulations which provide local authorities in England with the power to direct academies within their area to admit students or expand school places. An example of why that could be important would be a new housing development of some significance which alters the balance of pupil numbers in a particular geographical area. Broadly speaking, our amendment is very similar to that of the noble Lord, Lord Knight. He uses “guidance”; we use “direction”. It is also similar to Amendment 160, which will be spoken to shortly.
The problem is simply that councils have a statutory duty to ensure there is a local school place for every child who needs one, but they currently do not have the power to direct academy trusts to expand school places or to admit pupils. This amendment would introduce a new backstop power for local authorities to direct trusts to admit children as a safety net.
I understand that the Government have committed to consult on a new statutory framework for pupil movement, which might introduce a new backstop power for local authorities to direct trusts to admit children as that final safety net, with a right for the trust to appeal to the schools adjudicator. I seek the Minister’s confirmation that that is what the Government are planning. However, councils’ ability to meet local demand will be increasingly undermined as more schools convert from local authority maintained schools to academies, so we need to ensure that the backstop power is introduced as soon as possible to give local authorities the power to deliver their duty in school place planning. I regard these as essential powers for local authorities. Parents and guardians would be incredibly surprised if they discovered that local authorities did not have those powers, which, of course, are currently limited, as I explained.
Briefly, Amendment 162 takes us wider than just the admissions function. It prescribes a list of functions that a local authority should be responsible for managing for all state-funded schools in the authority’s area. The first is what we have just been talking about: that every child “has a school place”. In addition, we need to co-ordinate
“the provision of education to children who are at risk of exclusion from school”
“the provision of support to children with special educational needs or disabilities”.
We also need a local authority
“to act as the admissions authority for all state-funded schools in the local authority area, including by managing in-year admissions … to manage the appeals process against individual admissions decisions … to prevent pupils from being removed from the pupil roll of a school unlawfully … to monitor the performance of schools; and … to monitor how schools engage with their local community.”
That all seems common sense, and it is what the general public would expect for their local area.
There are two overriding reasons why it is essential to define local authority powers and responsibilities. Local authorities are, after all, the locally elected democratic body to which parents and the public will turn if there are difficulties, but secondly, they are the place where the co-ordination and integration of provision in schools can be undertaken. We will talk later about multi-academy trusts and whether they can be geographically widely spread across the country, with all the problems we can foresee if that is a developing trend. With these two amendments, I seek the Minister’s assurances that the role of local authorities will be properly embedded in the schools system.
My Lords, I too have an amendment in this group, but first, in response to the noble Lord, Lord Knight, I very much share his vision of taking local authorities to the point where they are advocates for parents. If we look back to the old days, that role was missing; they were advocates for schools, not parents. I remember local authorities that would pull a bad teacher out of a school and deliberately put him in another one because they were there to look after the teachers, not the parents. The logic of the direction we are going in is to have local authorities as the parents’ advocate and therefore, as the noble Lord, Lord Shipley, said, to have some power in this—to have the ability to really shift rocks where they are in the way of parents.
My Amendment 58A is, like this grouping, an odd collection of bits and pieces. We have largely dealt with proposed new subsection 1 in earlier debates, but I have a real problem with the way academies handle admissions data at the moment. What used to be a coherent local authority booklet on how you could get into one school or another has now been reduced to a collection of “For information, apply to school” notices. There is no coherence. It gets really difficult and time consuming for a parent to get to understand what schools they might have access to, and that is really destructive to the power of parental choice and the point of having lots of different schools and admissions systems in the first place.
You absolutely ought to empower parents to make the best choice for their child. That ought to be the centre of the admissions system; it is not. I have failed to shift the DfE on this on many occasions. It is ridiculous. All schools have to do is, on a reasonable timescale, provide the local authority with their admissions data in a standard format—it has to exist in that format anyway, because there is a common system of handling admissions—and then allow the local authority to publish it.
The Bill is an opportunity to bring some sense back into the admissions data system and to remember why it is there, the point of parents choosing schools and the good that we used to argue came from doing that, rather than allowing this continued pointless, profitless inertia in the DfE to get in the way of parents’ interests. I appeal to my noble friend to pick up on this issue again but to do so from the point of view of doing best by children and parents.
Academies also need to get better at providing standardised information to parents, so that it gets easy for parents to compare one school with another. Destinations of children, examination results and the level of literacy and numeracy in the school are elements which it ought to be possible for a parent to look at in detail, beyond the Government’s performance tables. It ought to be easy. You do not need to make it easy for the sharp-elbowed middle classes; they do it anyway. They have the time and do the work. We want to make it easy for every parent, and that requires not asking parents to do the work, because a lot of parents do not have the time to get to the point where they really understand what is going on. We have to provide things in a standard way, so it is really important that we get the data and that there is an up-to-date Ofsted report—and ideally one for the multi-academy trust, where there is one, too—because that sort of data is easily comparable and digestible by any parent who is really putting their mind to it, which should be the point of those reports.
In a system where we have a lot of academies rather than local authority schools, I think we need to come back to a system that really centres its thinking on parents, how they make the choices and how they negotiate their relationships with schools, and to reinvent the local authority as a strong friend of parents in that context.
My Lords, I welcome the fact that we are discussing admissions policy. It is not the principal object of the comments that I want to make but it is certainly at the heart of the unfairness of the system that operates in many parts of the country. I was shocked at the number of different admissions systems referred to by my noble friend Lord Adonis. As soon as you depart—as, I am afraid, we did quite a while ago now—from a common admissions system for the whole of a local authority area, you depart from a situation whereby there could be no question of schools poaching pupils by varying the system. The only way to get fairness across the system, with schools working together co-operatively and the whole community being served, is through a common admissions system, not sundry random ones.
We have all heard comments—not just anecdotal ones—about the questions sometimes asked when selecting pupils for schools. I have even heard questions asked about whether there is a suitable room at home in which a pupil can conduct their homework—an outrageous kind of selection policy—or whether, at 11, it can be guaranteed that the pupil will stay on until the sixth form, and other selective admissions questions.
Anyway, that is not my main purpose. What I really want to say in connection with this group of amendments is, essentially, “hear, hear” to what my noble friend Lord Hunt said. I find it very depressing that, after so many years, we are still debating the merits of grammar schools. I much prefer to couch the debate not in relation to those merits but to the merits of saying to an 11 year-old—indeed to the majority of 11 year-olds in a particular area—“You have failed.” We hear lots about the alleged advantages of going to a grammar school, but I have not read many books—I would like to have references to them if they exist—on the wonders of failing the 11-plus and the advantages that come from it.
For most people, if not everyone, of my generation and probably a good few who are younger, there was no option; we all took the 11-plus. Over half a century ago in my case, in an average road in an average part of Britain such as I lived in, we all played football and cricket together and then, some of us had passed and some had failed. To this day, I do not know why; it was random. They were the same people who played football, who I went to the pub with when I was a bit older, and who I played with in a rock group—that was a long time ago—about the same time as the Beatles, although they were more successful.
Some of us had passed and some had failed. If anyone thinks, well, they should just get over it, I can tell the Committee that, 50 years on, many people who failed the 11-plus never really got over it. It was a life-changing circumstance, a life-changing occurrence at the age of 11, which I find indefensible. It has got better in many ways as educationalists of all parties have got rid of grammar schools in many areas but, in areas where it persists, it has, if anything, got worse.
At least when I took the 11-plus there was no intensive coaching of 10 and 11-year-olds to try to get us through, but the nightmare reported by parents in Kent is that this is now the prerequisite; that is what you have to do. I do not want to get too anecdotal about this but I even know of parents who, due to a promotion, wanted to move their family to Kent but were initially dissuaded from doing so—they did it eventually—because they did not want to put their seven, eight or nine year-olds, as they were at the time, through the trauma of having to take the 11-plus. Again, in a family near me with four children, the three eldest passed and the fourth failed; we can just imagine what it does to a family when that kind of thing happens.
I just find it depressing that we even need to discuss this, but I ask the same question that my noble friend did. If the Minister can reassure us that there is no intention to expand and develop the grammar school system, which for so long has been demonstrated to be unsatisfactory and unfair, then that is a status quo that I do not find acceptable but is at least better than the situation getting worse. Really, I blame all parties, including mine, for the fact that this iniquitous system was not removed from our educational structure a long time ago. It would be wonderful, although this will not happen, if the Minister were able to stand up and say that it was a bad system and that the Government were keen to see it removed.
My Lords, I shall speak against Amendment 35A in the name of the noble Lord, Lord Knight. The amendment—for obvious reasons, given what he has said today—does not account for voluntary, aided and foundation schools. This is not a recent provision; they have always acted as their own admission authorities as maintained schools. As set out in the School Admissions Code, academies with a religious designation must also consult the diocese and the board of education and have regard to the advice of the diocese.
My Lords, I support the thrust of the arguments from the noble Lords who have led this debate. I shall make one or two points that perhaps have not yet come out strongly. The freedom to set their own admissions arrangements was given to academies when they first started. To be honest, I think that was a huge mistake. In local areas, it caused terrible animosity between the academies and the other maintained schools. That is part of the rift and the bad feeling that exist in many communities. I do not know many schools that, in setting their own admissions criteria, have sought to prioritise the poorest and most challenging children, those who have been excluded from more schools than anyone else, those without supportive parents and those without a room to work in at home—that is not how choosing your own admissions criteria actually works.
This is not the schools’ fault but, in terms of judging schools by how well they do academically, our whole system incentivises schools to have admissions criteria that get those children who are most likely to do well academically. If we were to change the accountability mechanisms so that we had as our most important accountability measure how much you can do for the poorest 5% of children in your city, we would have a different system, but that is not the way it runs.
However, I also blame schools. I was a teacher for 18 years. At the heart of it, I have always believed that the job of a professional teacher is to teach the children who end up in front of you on any given day—not to pick and choose; not to reject and throw away; not to say, “It’s easier to teach you than you”, but to do your best with the skills you have with the children in front of you. I taught in a school that was very challenging, and as a teacher the greatest rewards come from the progress you make with the children who are furthest behind when you start—but that is not the way the system works. There have been too many examples of academies that have used their ability to have their own admissions arrangements to select the children, or the parents, that will put them highest in the accountability stakes.
If you are a school that is undersubscribed, this argument does not matter to you. If you cannot get enough kids through the door for your published admissions number, then none of this matters. It matters only if you are a school that is oversubscribed, because only when it gets to oversubscription do the criteria for admissions come into effect. So think that through: if you are a school that is undersubscribed and not attracting children, so not getting the money, you have to take whoever no one else wants. Therefore, you do not improve, you do not get as many children, you do not get the money and again, you do not improve. That is the cycle that happens: undersubscribed schools do not attract children and therefore find it very difficult to improve.
Looking back, when the academies started under the Labour Government they were addressing the needs of those schools in the most challenging areas. In truth, what happened was that if you gave them a new building, a new head and a committed sponsor, they still did not have a cross-section of students coming through their doors. The idea at that stage, in giving them some power over admissions arrangements, was to try to get a better social mix. I can sort of see that, but it has gone way out of kilter with how it should be. In 2010, the minute the vision was that every school should become an academy, that just did not make sense.
I say to my noble friend Lord Hunt that where schools differ from hospitals is that who you treat in one hospital does not usually have an impact on the neighbouring hospital or another in the outer ring of the city. But schools are interrelated: who you choose to admit has an effect on every other school in your locality as it is an interrelated business, so it is very important that we do not have schools competing with each other in any geographical area for the bright kids. It has to work across such an area, for two reasons.
First, successful schools will always manage to attract children who, quite frankly, are easier to get the high results with—I would not say they are easier to teach. That has an effect on other schools and creates that bad feeling, so it is interrelated. The way you choose to admit pupils has an effect on other schools in your locality. I do not mind what they do, whether they band or have feeder schools, or measure it in yards from the school. What I do mind is that all schools in a local authority area ought to do the same. If you want a social mix, you can band right across the local authority area. I am not sure I like that but I do not have a problem with it because the behaviour of one school will not badly affect the performance of another.
In Birmingham, however, the minute you let over 400 schools set their own admissions arrangements there was chaos. It meant that they do not match each other. Some people of a faith with a child of a certain ability live in a place where they cannot get them into their local school because they do not live close enough, or into a faith school because they are not of the right faith. Neither does their child have the right ability to get selected in the banding arrangements, so where do they go? They go to the school that still has places left. That is not choice, but it happens in areas where there are a lot of schools that are allowed to have separate admission arrangements.
In supporting very much the amendments put forward, my plea is that it has to make sense across a geographical area. That means you cannot allow schools within the same area to have different admissions arrangements from other schools within it. I think the local authority should manage that, and that there is nothing wrong in all the schools getting together with a local authority, the parents and the primary schools to decide what those criteria should be within a national framework set down by government. But at some point they have to come to an agreement, because education is about a social as well as an academic experience. Your social experience is, in part, the children who are around you in your school—and that matters.
To be honest, that is why parents go to so much effort to exercise choice over where they want their child to go. It is not just for the academic experience but for the social experience—again, it is different with a hospital. That social experience will be right for all children, or as good as we can make it for them, only if we have some camaraderie within a geographical area so that people sit down with the same admissions arrangements. Having done that, teachers should do what they do: get on with teaching the children in front of them, not spending time on trying to get a different bunch of children in their classrooms because they think it gives them a better chance of success.
My Lords, I have a quick comment. I am grateful to the noble Lord, Lord Hunt, for his history lesson. During the period he mentioned, Rutland had the unfortunate experience of being part of Leicestershire. Had grammar schools still existed then, I can only look back and wonder what my own education—with no money for tutoring—would have been if the local school in the market town had been left as a secondary modern.
I have a specific question on the point made by the noble Lord, Lord Shipley, about the backstop power, which I was surprised to see included in, I think, the White Paper. What is the timing of that? At the moment, we know that some boroughs are under extraordinary pressure. When we nationally decide, for instance, to admit tens of thousands of families from Hong Kong—which is a great policy—we create extraordinary influxes of children into particular areas. I was just reading a Manchester Evening News article about the pressures Trafford Council is under at the moment, having had an extraordinary influx of Hong Kong Chinese families into the area. This has unusual ripples in Trafford, where there are grammar schools within the borough.
What would the timing of this be? At the moment, we have local authorities which cannot have any effect on admissions, particularly in those secondary schools that are academies. There is a proposal for a backstop power. This was also before we admitted tens of thousands of Ukrainian families into this country. If in the consultation it is decided not to have the backstop power—I recognise the view from those in the academies sector on local authorities’ admission policies—is there not a case for some emergency power in a situation when tens of thousands of families come into an area? You need different admissions arrangements because you have to think about the cohesion of the area locally. If you have an influx of families, families who have lived in an area for many years find that they cannot get their children into the schools they want. There are also the unpredictable ripples of selection in an area. Can my noble friend the Minister outline the timing of this, because there are boroughs under pressure today?
My Lords, can the Minister clarify how special educational needs fits into this picture? I know the Government are currently looking at this area, but it is one that has led to the growth of legal firms to fight a way through the system. It is a failing system. I remind the Committee of my interests in special educational needs, and dyslexia in particular. With dyslexics, for instance, we are discovering that something like 80% of those on that spectrum are not identified within the school system. There is capacity here for a group that exists but we know is not even being spotted. Should we not have some capacity for dealing with the people with these sorts of problems, because we know they are going to come across? This also applies to all the spectrum of non-obvious conditions and hidden difficulties.
If the Minister cannot reply now, when we are looking at this, could she write to us about what the Government’s thinking on this sector is at the moment? It is yet another element when it comes to choosing a school or a school’s willingness to take on a pupil. We know there are people fighting this. As I said, if ever there was a definition of failure, it is that you need lawyers to get your rights. That has to be the classic case. Can the Minister give us an idea of the Government’s thinking about admissions? If you cannot get into a school because it has set criteria, regardless of any formal test or examination, it will change how things work. It will be very interesting to hear what the Minister says about government thinking on this, because it is another factor that will affect this whole process.
My Lords, I will briefly enter this debate on Amendment 35A and the question of whether Clause 28 should stand part. There is a so-called route to school improvement that my noble friend Lady Morris mentioned: you change your intake. It is relatively quick and it is not painless at all for the school, but because of the way our systems work it can be done. But it is immoral and socially unjust. It is not the right way to do things.
The fact that, in a debate, we can even talk about “children whom no one else wants”—which I put in inverted commas, as my noble friend Lady Morris did—is frankly quite appalling, and that is why I am enthusiastic about this Clause 28 stand part debate. My noble friends Lords Hunt and Lord Grocott made excellent speeches, which I hope they will redeploy if we ever get a Second Reading of the Private Member’s Bill I introduced this morning, because they made all the relevant points. I will not repeat them, except to say that the comprehensive principle is essentially about levelling up, because if you have schools choosing parents and children, you have selection for some and rejection for others. Frankly, no education system ought to reject significant numbers of children; they should just not do it.
The fact is that, for large numbers of children—whether the areas in which they live have grammar schools or have all the difficulties outlined by my noble friend Lord Knight in terms of how the transfer between year 6 and year 7 works—year 6 is blighted for those children, their parents and carers and often, frankly, for their wider family members who are also worrying about where their niece, nephew or whoever else might end up. This is a year when these children, who are at the top of their primary school, ought to be developing their leadership skills in an age-appropriate way and ought to be looking to the next phase of their education and thinking about how exciting it is going to be. However, what they are actually doing is worrying: of course, they are worrying about SATs, but they are also worrying about where they are going to end up. The idea that some of them end up in one school and some end up in another—sometimes on the basis of admissions arrangements which are completely inexplicable to parents—is an absolutely terrible thing. If we really want education to work for all children and to be the service that can do the best by all children and young people, we certainly need to have reassurance from the Minister about no expansion of grammar schools, but we also need to ensure that we have genuinely fair admissions arrangements for all children, wherever they are.
My Lords, I rise to speak to Amendment 169. I express my gratitude to both Ministers on the Government Front Bench for a very helpful conversation. In the course of what they will say, they may well be able to allay some of the anxieties that I have expressed about the position of adopted children in the past. I greatly appreciated that, and want my appreciation recorded.
Amendment 169 is not about the big issues on admission which we have been discussing, although I completely associate myself—if I can pick just one of my noble colleagues—with my noble friend Lady Morris about geographic and local coherence in the arrangements we make. This amendment may appear to be a small and detailed matter by comparison, but I can assure the Committee that it is of the first importance to the small number of people who are impacted by it. Amendment 169 addresses the difference in educational access and assistance experienced by children adopted from care internationally, contrasted with those who are adopted from care in the United Kingdom, and the impact of these differences on their education and life prospects.
I declare an interest as the proud father of a quite exceptional adopted daughter who became part of our family on the third day of her life and is a great blessing. When I first spoke about this matter in the House, she was 10; she is now 13 and, until the discussion I had today, it appeared to me that nothing had moved forward in those three years of her life. However, I think that we will hear something rather more different today.
Adopted children face many challenges which are well documented. Many have special needs, some far greater than others, and, in many cases, because some spend years in care before finding a loving family home, they experience many of these difficulties to a very great extent. The care they experience is of very mixed quality, especially abroad, and they carry that experience alongside the fundamental experience of loss of attachment throughout their lives. There are multiple studies in the leading peer-reviewed journal, Adoption & Fostering, which most Members of the House will feel establishes the facts beyond dispute. The impact on these children has also been largely experienced by children from particular countries: China, India, Thailand, Ethiopia, Guatemala and some from Russia. As your Lordships will easily detect, the impact of discrimination has therefore been far greater on children of colour.
The scheme of intercountry adoption is regulated by the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption 1993. It was ratified by this country, among the then 24 EU members, and it says that all children adopted from care overseas should have the same rights as those in the receiving countries. There was nothing at all unwilling about our participation, and I note that David Cameron was in the forefront of making all kinds of adoption, here and abroad, easier. I hope that in the course of this discussion, we will hear about changes being made to the School Admissions Code, so that it will require local authorities and other admissions bodies to give the same top priority for pupil places to children adopted from state care in this country.
In case it is not well understood, although I suspect that it will be, I add that most of the children who are adopted from overseas, once they are adopted, come here and become United Kingdom citizens. The question on their parents’ minds will be, “Why on earth would they have worse prospects than comparable United Kingdom citizens?”. It is acknowledged that this would be discrimination between kids adopted here and overseas, and it would violate the 2010 Equality Act which states in terms that there must be no discrimination in school admissions based on country of origin.
The data is strong. While I will not delay the Committee for long, it is always worth trying to use an occasion like this to underpin why the changes are necessary. Some 94% of peer-reviewed papers show adoption to be correlated with lower academic attainment and related behaviour problems. This is clear among very young children and gets clearer with age—it is most acute among teenagers. Of the issues faced by children, trauma around attachment and anxiety about the loss of attachment are absolutely distinct and significant in all the research. Some 80% of adopted children express profound confusion and anxiety at school; two-thirds report that they are bullied. Neither they nor their parents feel, in an overwhelming proportion of cases, that they have had an equal chance. To underline the point as thoroughly as I can: adopted children are 20 times more likely to be excluded than their classmates. In the first three years of primary school, they are 16 times more likely to be excluded. None of these data are spurious; they all meet high levels of statistical significance and confidence.
I was very grateful to hear what the noble Lord, Lord Lucas, said a while ago about the role of parents, because I feel that I am talking about the same thing. It is inevitable in these circumstances—and I believe quite rightly—that parents have the central role. It is not a mainstream role for national or local government for obvious reasons, but I know first-hand that parents pay the closest attention to the attributes in the pool of school options in front of them. Parents are the ones who interact with the schools and local authority. I promise you that, as a parent, you come to know which schools are most attuned to social and emotional trauma issues, can sponsor and encourage executive functioning for your child, know about providing sensory diets to regulate behaviour and grasp the implications of neurological divergence. You form self-help groups of parents grappling with these issues where you learn a lot and enjoy a lot of support. You get to know—because you have to—where there is specific training and knowledge of attachment trauma and where the head teacher and specialist staff really know what they are doing, as distinct from knowing what they should be doing. It is the way in which you choose the mission-critical path for your child and it does not rely then on good luck in admissions. It is parent engagement and decision-making at its clearest.
Many schools are excellent at many other things, but they are not all necessarily excellent at everything and may not be excellent at this vital thing which I am describing, which could determine whether your child joins that absurdly high number of kids who get excluded or bullied, underachieve or are profoundly miserable. It matters not one whit to you whether your child was adopted from here or abroad.
I look forward to what the Minister will be able to say but, having commented on the Ministers in this House, I say that much of the running on this was made by Nick Gibb when he was Schools Minister. He told local authorities in December 2017 that they should include children adopted overseas for priority admission to schools identified by their parents to give the kids the best chance. Unfortunately, a significant number of local authorities would not take that advice from the Minister for Schools, which I think was very sad. But we are now in a position where we have a ministerial team that will, and I sincerely welcome that. I also welcome that there will be further thought on the pupil premium plus, which is also very significant for this group of students, and hope there will be further comment on that.
It turns out that we did not need, as I thought for some years we did, primary legislation to achieve the things that I think can be described by Ministers today. I welcome that for a very straightforward reason that is not all that much to do with personal experience, although of course that does bear on me. I welcome it because kids get one chance, and kids who have difficulties need all the help they can to take that chance. It is up to us to give it to them.
My Lords, I support the noble Lord, Lord Triesman, in this amendment. I have great respect for people who adopt. I personally support a wonderful organisation called Hope and Homes for Children, which has closed many orphanages in eastern European countries and allowed the children to be effectively adopted—it is not quite the terminology that most of these countries use. I took the Children and Families Act through your Lordships’ House, which was very substantially about improving adoption arrangements. I remember the noble Lord raising this point with me when I was a Minister. It seemed a no-brainer then and it seems to be so now, and I very much hope that my noble friend the Minister will support him in making this amendment.
I would also like to speak briefly on the point about academies fixing their admissions arrangements to their advantage, which has been mentioned. As a rule, this is unfair. There are some schools—schools of different types, actually—which have rather complicated admissions arrangements and one sometimes wonders whether they are deliberately complicated. But, as I say, I think it is unfair on the vast majority of academies and multi-academy trusts.
It is pleasure to follow the recent speakers, particularly my noble friend Lord Triesman. That was an exceptional speech and his personal experience really gave us food for thought. I echo what the noble Lord opposite said about people who take that life-changing decision for themselves and their families to adopt. I too am looking forward to what the Minister has to say in response.
I would also like to support my noble friend Lord Hunt and others in their desire for the Government to commit to the existing position on no new grammar schools. We understand that the Prime Minister is in generous mood with his Back-Benchers at the moment, and it would be a real shame for a change to the current rules to be made in that context. We are concerned about that, given some of the comments referenced by others, and want to make sure that it does not happen.
I shall just reflect on what the noble Lord opposite said about academies having the finger unfairly pointed at them. We understand that in many areas, through choice, academies co-operate very well with local authorities as the admissions authority. They share admissions arrangements and it is done in a way that we would like to see done everywhere and accepted and understood. In our Amendment 160 we are clear that local authorities should be the admissions authority, and amendments have been tabled by others. In particular, in his introduction to this group, my noble friend Lord Knight made the case extremely well. We think that local authorities should have the responsibility because they have the responsibility for the well-being of the children in their areas. This is not just about making sure that every child has a school place; it is about making sure that the way that the system works is fair to children and their parents.
Local authorities can fulfil the honest broker role very successfully. We know that parents often feel insufficient agency, shall we say, and are tempted into gaming the system. As the noble Lord, Lord Lucas, said, sometimes that is done on some very questionable information or perhaps an out-of-date reputation of a particular school. We would be interested in supporting there being more information that is relevant to making that decision, rather than some of the marketing that parents see from year 5 onwards.
We have reports every year of schools giving out supplementary forms, asking for personal details or encouraging, in subtle ways, contributions to the school or using very subjective tests that are deeply concerning. On the surface, they can be explicable in some way, but we know what is really going on. It would be good if the Minister could let us know how widespread she assesses these practices to be.
Local authorities have a good understanding of the educational landscape in their areas. Obviously, they have responsibility for place planning and that is a vital function, but so too is ensuring that children are admitted to school fairly. In our amendment I have made special reference to looked-after children. Noble Lords will know that, in most cases, looked-after children are in the system due to abuse or neglect. They are more likely to have mental health problems, more likely to have additional needs, and less likely to do well at school. Some 35% of care leavers are not in education, employment or training, compared to 11% of the general population. Local authorities have an existing duty to promote educational achievement of looked-after children, and one of Josh MacAlister’s five missions is to secure a quality education for looked-after children. But we know that they currently are less likely to go to a good or outstanding school; the Children’s Commissioner is very clear and is challenging the Government on that.
We note the inadequacy to date of the Government’s response to MacAlister. I know it is relatively early days, but so far we have just had a letter and an opportunity to discuss a Statement. We really want to see more, and I would be grateful if the Minister could commit to writing to us on her assessment of the current situation in relation to looked-after children. We know that there is a substantial legal framework around all this and that guidance does exist, yet we still find outcomes to be as poor as they are. What is her assessment of the current situation? Can she bring us up to date on the Government’s intention to support this group of people in particular? Having said all that, I just want to get on the record our concerns about children who have experience of the care system. We particularly want to see the Government clarifying and making the good practice that happens—we know that it does, with local authorities being the lead organisation for admissions in some places—the norm across the country.
Just finally, we have had to shoehorn this discussion into the Bill because it does not seem to say anything about admissions beyond the Secretary of State being able to have a power to make orders about them. This has been a most worthwhile, enlightening and enriching debate, and it would be good if the Government could be a bit more forthcoming about what they plan to do.
My Lords, Amendments 35A, 78, 160 and 162 in the names of the noble Lords, Lord Knight, Lord Shipley and Lord Storey, and the noble Baroness, Lady Chapman, seek to clarify the strategic role of the local authority in education, particularly on admissions. I welcome the opportunity to restate that this Government believe that local authorities should remain at the heart of the education system, as the noble Lord, Lord Knight, said, championing all children, particularly the most vulnerable.
Through existing legislation, local authorities are already responsible for ensuring that every child in their area has a school place; for co-ordinating applications for the main round of school places; for identifying children and young people in their area who have special educational needs or disabilities; and for working with other agencies to ensure that support is available. As we move to a fully trust-led system, local authorities will retain these roles, continuing to ensure there are enough school places and to play a central role in fair admissions, particularly for the most vulnerable. We plan to increase the levers that local authorities have to help them deliver these duties, while maintaining trust autonomy.
Like my noble friend Lord Nash, I must disagree with some of the sentiments expressed by some of the Committee on trust autonomy with regard to admissions. The best MATs and academies have a strong record of admitting pupils from disadvantaged backgrounds and achieving excellent outcomes. My noble friend the Minister will happily write to the Committee to set out more detail on this issue.
The noble Lord, Lord Addington, asked about how special educational needs will fit into the picture. In the SEND and alternative provision Green Paper, we proposed new powers to convene partners as part of a statutory framework for pupil movement, including for excluded children. To respond to the question from the noble Lord, Lord Shipley, we will also include consultation on a power for local authorities to direct trusts to admit individual children in limited circumstances. Consultation is ongoing on these proposals. In the schools White Paper, we proposed further strengthening local authority levers to deliver their duties with a new power to object to the schools adjudicator when a trust’s planned admission numbers threaten school place sufficiency and requiring local authorities to co-ordinate in-year applications. We will consult on these measures; it is important that we listen to the outcomes of that consultation. My noble friend Lady Berridge asked about the timing of that. Given the scale and complexity of the admissions system, it is important to get these decisions right, so we are working currently with the stakeholders to refine our proposals. We will consult in due course and seek a further legislative opportunity where needed.
I also agree with the noble Lord, Lord Knight, and others that close working between trusts and local authorities on these duties is essential. Through the proposed powers in Clause 1, we will create a new collaborative standard, which will require trusts to collaborate with local authorities and encourage better co-operation. Amendments 160 and 162, however, propose making the local authority the admission authority for all schools. This would prevent school leaders making decisions that are most appropriate to their community, including, as we heard from the right reverend Prelate the Bishop of Bristol, for voluntary aided schools, which have had long-standing control over their own admissions.
The proposal in Amendment 78 to allow a local authority to direct a physical expansion of any school would be very difficult to achieve, because in many cases neither the local authority nor the Secretary of State has control over a school’s land. Our White Paper proposal instead allows trusts to continue to determine how many places they will offer but gives local authorities an additional power to ensure that they can still meet their sufficiency duty.
Amendment 58A from my noble friend Lord Lucas rightly emphasises the importance of parents having access to the information that they need to support their children’s schooling and of schools having good links with their parent body. However, we do not believe that this amendment is necessary because existing regulations, which academies are required to follow via their funding agreements, already require academy schools to provide a range of information to parents on aspects such as exam performance, Ofsted outcomes and admission arrangements. Furthermore, the department’s governance handbook is clear that schools and academy trusts should have in place mechanisms to engage with parents and the broader community, and that should be able to demonstrate how those views have influenced their decision-making. These provisions will transfer to the academy standards in future.
Amendment 160, in the name of the noble Baroness, Lady Chapman, is rightly concerned with the best interests of looked-after children, some of the most vulnerable in our society. That is why the School Admissions Code already requires all schools to give the highest priority in their admissions criteria to looked-after and previously looked-after children. To respond to Amendment 169 in the name of the noble Lord, Lord Triesman, I am pleased to confirm that the admissions code was updated last year to require admissions authorities to provide children adopted from state care outside England equal highest priority for admission with those who are looked after and previously looked after by a local authority in England. That change is now in force. I join him in paying tribute to my right honourable friend Nick Gibb, the previous Schools Minister, but also noble Lords in this Chamber—the noble Baroness, Lady Walmsley, and the noble Lords, Lord Russell, Lord Watson and Lord Storey, as well as my noble friends Lord Agnew and Lord Nash, who, along with the noble Lord, Lord Triesman, have shown a commitment to advocating for this group of children. The Committee has my commitment that those children will continue to be prioritised in admissions criteria. As the noble Lord, Lord Triesman, noted, the Government are looking at including them in the school census from the 2022-23 academic year to gather the data that we need when we look at extending the pupil premium plus to that group of children too.
Finally, I turn to the amendment of the noble Lord, Lord Hunt, which seeks to remove Clause 28 from the Bill. As we have heard, grammar schools have a long history within the education system and, where they exist, they are popular and oversubscribed. However, they are concerned about surrendering their independence to a MAT if it does not share their views on selection by ability. Clause 28 will put the status of academy grammar schools on to a legislative footing by designating them as grammar schools in the same way as local authority-maintained grammar schools are designated as grammar schools. The Bill will not enable the opening of new grammar schools. These changes, at their heart, are about regularising, within legislation, the status of grammar schools.
The Bill does not provide for that, and it is not government policy to open further grammar schools. It is about regularising their status within the legislation, and the provision makes sure that only a parental ballot can trigger an end to selection, whether that grammar school is a local authority-maintained grammar school or an academy grammar school. It will remove one of the main perceived barriers to them joining a MAT, while retaining the right of parents to choose whether they should continue to select by ability. I therefore hope that the noble Lord, Lord Knight, will feel able to withdraw his amendment and that other noble Lords will not move theirs when they are reached.
My Lords, might I just drop in before the noble Lord, Lord Knight? My noble friend is not right in saying that academies currently provide all the data required on admissions. I have written to the Minister and demonstrated many examples of where this information is not provided. Yes, you can go to the school and ask for it, and it may be somewhere on the school website, in an irregular place, but it is absolutely not given to local authorities in a way that makes it easy for the local authority to publish a booklet that gives parents complete information on the admissions structure in their demesnes. This hurts parents a lot. As editor of the Good Schools Guide, I know how much this disadvantages parents who do not have the time and experience to crack the code of 20 different schools and find out how to get the information and how it all knits together. It really gets in the way. If my noble friend would be willing to grant me a conversation with officials on that, I should be most grateful.
I will happily arrange that conversation. There are two points I would make to my noble friend. The first is that the information is publicly available, albeit maybe not in the format that he thinks is most usable. The second comes back to the new collaborative standard requiring trusts to work collaboratively with local authorities, which will encourage better co-operation. I hope that will be a positive move in his eyes.
My Lords, I am grateful that we have been able to have an hour and 20 minutes to discuss admissions. Given that the Government’s policy is that all schools should become academies, it is an uncertain area and it is really important that we have taken a bit of time to debate it.
I am delighted that my noble friend Lord Triesman already has a victory under his belt. I think my noble friend Lord Hunt is pretty close to a victory: we noted the words that the Bill as it currently stands will not enable the opening of new grammar schools and that it is not government policy for new grammar schools to be created without a parental ballot. Let us just hope that this government policy remains sound as the Bill proceeds through both Houses. There were some really powerful speeches, as ever, from my noble friend Lady Morris in particular, my noble friends Lord Triesman and Lady Blower—those are just the ones around me—and others.
I say to the right reverend Prelate the Bishop of Bristol that it was not my intention at all to interfere with the admission arrangements for voluntary aided schools. I am scarred from my time as Schools Minister from a moment when we heard the shadow Secretary of State, a young David Cameron, say that we might want to loosen up admission arrangements for faith schools. So the then Secretary of State, Alan Johnson, and myself announced that maybe that was a good idea and we then had priests preaching against us on Sunday and MPs in the Division Lobbies beating us up, saying, “We are going to lose the next election if you go ahead with this” and we performed a very delicate U-turn. I really did not want to go anywhere near interfering with the admission arrangements of voluntary aided schools.
I say to my noble friend Lord Grocott, in connection to his comment about the 11-plus, that my dad was one of four sons in Kettering who all took the 11-plus. He passed; his youngest brother, Hugh, passed; the middle two brothers failed. The two who passed joined the professions, one as an accountant, the other as a banker; the two middle ones took much lower-skilled work and both emigrated, one to Canada and one to Australia. Those two remained close; the two who passed the 11-plus remained close; but in my view, the 11-plus created a schism in our family, and that is part of my very deep opposition to selection and grammar schools.
My noble friend Lady Morris talked about the chaos of admissions, and that undoubtedly advantages middle-class parents. They can navigate the criteria; they can navigate what order to put schools in—what is your second or third choice, but you will only get looked at if it is your first choice, and you have to be quite sophisticated to work out the order you put things down. Then there are appeals. When I was an MP, I occasionally had constituents who came to see me wanting help with an admissions appeal in the summer, and they were never the more disadvantaged constituents in my area; they were only ever the more articulate ones. We really need to get this right if we want a school system that deals with entrenched disadvantage.
Having listened carefully to what the Minister had to say from the Dispatch Box, I will be pleased if, subject to the conversation we are having about Clauses 1 to 18, we get to a point where she introduces a collaboration standard. I would welcome that. I encourage the Government to go further and show us what their vision is for local authorities across the piece. She came close to that in some of her comments, but I would like to see, in the context of schooling, the Government’s vision for the role of local authorities, MATs, individual schools, and the Secretary of State. Publish that so that we can all see it before Report and can then make our judgment about whether they have it right. That would really help us, and then we might have some agreement about the future of admissions for all our schools. I am happy to withdraw my amendment.
Amendment 35A withdrawn.
I remind noble Lords that if Amendment 35B is agreed to, I cannot call Amendment 36 for reason of pre-emption.
35B: Schedule 1, page 88, line 33, leave out paragraph 35 and insert—
“35 In section 127 (guidance), in subsection (2)(b), at the end insert “, including Academies”.”Member's explanatory statement
The effect is to require academies to employ qualified teachers and to be subject to the Secretary of State guidance on teacher pay and conditions that applies to maintained schools.
I find myself leading on a whole series of groups: it is slightly challenging, jumping around. This one is about teachers, qualified teacher status and teachers’ pay. It amends Schedule 1, which is about the use of other education legislation, as set out in Clause 3. This would require academies to employ qualified teachers and be subject to Secretary of State guidance on teachers’ pay and conditions as they apply to maintained schools currently. Again, this goes very much to the question: if every school is going to be an academy, what is our vision for teachers, for teaching and for teachers’ pay and conditions?
We know from the evidence—it is really well documented—that good schools are good because they have high teacher quality, and teaching and learning are well led. In a way, it is like Governments—great Ministers well led by the Prime Minister; that is what a good Government might look like one day. If we agree with that evidence around teacher quality, and if we believe in the Government’s reforms of initial teacher training, the early careers framework and national professional qualifications, then we must think that the Government’s emphasis on all that is important and will raise quality. I have some arguments about the reforms of initial teacher training, but the Government are consistent in saying that the reason they want to reform initial teacher training, the reason they want to introduce the early careers framework and have done so, and the reason they have the series of professional qualifications is to raise teacher quality. They must believe in the qualification of teachers to have all that.
In the context of all schools becoming academies, I think parents would be really surprised if they found that this then meant that all schools were no longer subject to having to employ qualified teachers. It would be quite a surprise if that was in the newspapers or wherever it is they get their news. Parents expect their children to be taught by qualified teachers, and mostly that is the case. The vast majority of academies want to employ qualified teachers and do so, so I do not really understand why we would not translate, as we move maintained schools into becoming academies, the requirement that they should employ qualified teachers as well. Of course it is also true that maintained schools can employ unqualified teachers as instructors, so they still have that get-out if they really need it. Indeed, a very long time ago, I worked as an instructor at a sixth-form college in Basingstoke. For me, it is tricky, and I would be interested in any argument that came from others as to why we would not want qualified teachers in our schools.
Then I would argue, as I have sought to do with this amendment by replacing the get-out—on employing qualified teachers—with saying that academies should abide by national pay and conditions, that we should have a coherent labour market for all our teachers, the largest single profession in the world. A coherent labour market for them, working in publicly funded schools, would mean a consistent arrangement for pay and conditions so that they can plan their own careers and are not trapped in a single MAT employer that would have its own career structure and pay structure for them. They would be able to move about and develop their career and professional expertise on the basis of something that is predictable around the country.
For me, this is a no-brainer. I devote a huge amount of my time, pro-bono, to the academies movement, but this is something we need to get right. We should have a very clear policy of having qualified teachers, based on national pay and conditions. I beg to move.
I imagine it will come as no surprise that I support my noble friend Lord Knight. It seems to me that high teacher quality is obviously a critical issue in making sure that we have a well-functioning and successful education system. One of the problems by which we have been beset is that there is no coherence at the moment to the way pay and conditions work across the country—that is, across England.
At Second Reading I probably mentioned that if you are a female teacher, one of the difficulties you have in seeking to move is that you will have no idea what the arrangements are for maternity leave and maternity pay from one employer to another. While I entirely accept the point made by the noble Lord, Lord Nash—who is not in his place at the moment—that multi-academy trusts do seek to have a career structure within themselves, there are many reasons why individual teachers might choose to move, not just within the MAT but to a completely different part of the country. Of course, that might still be part of the same MAT, but that they might choose to move out of the MAT. Being able to have a predictable set of conditions and a predictable pay arrangement is critical.
One thing that has been noticeable over the years is that pay has become much less predictable because MATs have different arrangements. It is not so possible for teachers to be on permanent contracts and to know, for example, that they are in a position to get a mortgage. I imagine most noble Lords would believe that home ownership is something to which a teacher should reasonably be able to aspire, but in many cases it absolutely is not. A national, coherent set of pay and conditions therefore seems perfectly reasonable. I would add that that should be done on the basis of sectoral collective bargaining, but that is not in the amendment. I just like saying “sectoral collective bargaining” because it is the right way for us to run the system. I note, for example, that in Iceland there is no minimum wage because all wages in all sectors are based on sectoral collective bargaining—and that is not uncommon in other countries, too.
Finally, on the question of QTS, before I came into this House one of the things that I did was to work with colleagues in the European region of Education International, the global union federation for all education unions. The European region does not just cover the EU countries; it takes in a significant geographical area beyond that. When the arrangements came in that meant people could teach in England without QTS, it was a single thing that my colleagues in many other countries—including Scotland—were absolutely astounded should be happening in this country.
It just beggars belief that we would think it perfectly reasonable for anyone to come in and be a teacher, because it is such a critical job. Now, I have issues with the proposals for initial teacher education and training. I happen to think that we do not focus anything like enough on child development, and there are lots of other problems with how we now train and educate teachers. But the notion that there should not be something called qualified teacher status has really found absolute confusion in the minds of many teachers working in many of the European countries in which I worked. I support the QTS proposal and, specifically, national pay and conditions, and of course pensions for teachers.
My Lords, I have to say that I once had an aunt who was one of the most successful teachers I have ever come across. She was not properly qualified but was one of those people who came in after the war and could teach boys of 14 to sing in a very poor part of Newport in Monmouthshire. I do not start from any real belief that teacher training is a perfect answer, but I agree with the first part of what the noble Lord, Lord Knight, said. It seems sensible to have a system whereby, in general terms, of course teachers must have professional qualifications. I happen to think that we have to improve those qualifications and I have some sympathy with the reference of noble Baroness, Lady Blower, to the areas in which that ought to happen. That is really important.
If I have said that, however, I have to say too that I am much less happy about the second proposal. I have to say to the noble Baroness, Lady Blower, that I do not know of any other circumstance in which it is thought that you must have predictability about the money you earn. It seems to me perfectly possible to have standards when you go in for jobs, and I do not understand why this is a necessary part of that. Indeed, I noticed that she started with the teacher pay issue, and I want to turn it around; I think the noble Lord, Lord Knight had the right order. The order should be standards and quality and the ability to teach. It is not unreasonable then for there to be different systems in different places to meet different requirements.
That should be the decision of those areas, not a centralised decision dominated by the teachers. I always remember having a discussion with her many years ago, when she had a big poster that said “Putting teachers first”. That was the poster and that was the argument, and I want to believe that we put children first. So I start by wanting teachers of the highest standard, but I do not believe that it is necessary to have some kind of national pay structure that does not vary from once place to another. I much prefer the mix I am presenting. I must ask the noble Lord, Lord Knight: if he really cannot ask this Government to have a vision here, I do not know where else they have a vision, so why should they have it here?
My Lords, I was not going to speak in this debate, but I am minded to say just a few words in agreement with the last phrases that have just been used. This is part of the problem.
We obviously need a highly-qualified, well-trained teaching profession, as we expect in the health service and elsewhere. When we have a basic standard which is adhered to and a career structure that people understand, we can of course then vary that in order to attract teachers to particular areas, such as opportunity areas that the Government have designated at the moment—education action zones, in my time—where golden hellos and golden handcuffs are available to ensure that we get the right teachers in the right place to overcome gross historic inequalities in the quality of education in those areas. I would have thought that we could reach complete unanimity about that.
I do not have an aunt who used to teach me, but I did have my mum, who left school at 14. She was pretty good at correcting my English, which says something about the schooling of today and quite a lot about what she learned up until she was 14. I would not recommend people leaving school at 14; I think I had better make that abundantly clear.
I have a PGCE myself for teaching in further education, and a great deal can be done in the post-16 area to ensure that people are appropriately qualified. I just wanted to make this point: ex-Ministers or present Ministers may eulogise about students acquiring a key body of knowledge—and with that a historic view of how teaching might take place—but it is impossible to ask pupils to acquire it if those teaching them have not acquired it themselves. That is why trashing teacher training through university is a big mistake, because someone has to have that historic foundation and knowledge of pedagogy in order to know how best to develop for the future the best way of teaching in entirely different circumstances to the ones that people might experience in the school they first enter.
I have one small caveat and disagreement with my noble friend Lady Blower. I was involved in battling for years to get a national minimum wage, because collective bargaining in some areas was about differentials and the clash between the craft unions and the general unions—I do not want to go back to those days.
My Lords, this is an important question, but, again, I would be looking for the output, not the input—in other words, when asking whether teachers should be qualified, it is the quality of the qualification that matters. At the moment, it is a nine-month course without any validation at the end. We have the Teach First initiative, which was pioneered very successfully by Labour, which is six weeks of training. Looking at parts of the economy where we are desperately short of good teachers—take a subject such as computer science, for example—I would say that you could bring those sorts of people into teaching for a couple of years, because they might want to put something back in an initiative similar to Teach First but then go on to a different career.
So, if we are worrying about the quality of teachers, we must be careful that this is not just about some formal qualification. It is about how good they are and, particularly in response to the noble Lord, Lord Blunkett, it is about how good they are at enthusing children in the classroom. I think we have moved into a new and very difficult game post-Covid. Children were learning across screens remotely on and off for two years, and the skills needed to enthuse and engage children in that way have changed, rather than just standing in a classroom. So, I am sceptical, but this is an important point, and I am glad that we have the chance to debate it, because this is exactly what a Schools Bill should be doing.
I support my noble friend. I say to the noble Lords, Lord Knight and Lord Blunkett, that if a teacher has been teaching in the private sector for 20 years and is well qualified in their subject—through university and through practising it for 20 years—are we really going to make them take a course for nine months, at the end of which there are no exams, so that they are qualified to teach? I think we need to be a little more flexible about this.
Just to add to that, I think there are—or there used to be—ways for teachers moving from the independent sector to the state sector which were far less than nine months.
I take the point about a subject like IT. I absolutely agree with the amendment: teaching is a profession, and all the evidence internationally shows that the better qualified the teacher, the better the achievement for students. That is what this is all about. But if the problem is that, in a fast-moving world, there are a set of skills such as IT that people need to come into education to deliver, there needs to be another way of meeting that need and getting those people in rather than saying to the whole of the school system that teachers do not have to have a qualification. This is not being used to get people with specialist IT skills into schools to help children. It is being used by headteachers and schools where they cannot get staff with qualifications in front of children in classrooms, so they go for those without qualifications.
Although I share with the noble Lord, Lord Agnew, the wish to get the latest skills into the classroom without making people do a year-long PGCE, we just need a bit more creative thinking in order to make that happen. It cannot be that we go back to a profession that not only is not a graduate-level profession but is not a qualified profession at all. The message that gives is something that none of us who are committed to the education of children ought to support.
It is a real pleasure to follow my noble friend. She is absolutely right: this is about profession.
My Lords, we asked to de-group this amendment from that of my noble friend Lord Knight, because it is such an important issue and deserves its own debate. Our Amendment 36 would remove the exemption teachers in academies have from needing to have QTS but gives a grace period until September 2024 to give schools and teachers sufficient time to adjust. We felt that this is a sensible way forward. The amendment redresses the opt-out given by former Prime Minister David Cameron and Secretary of State Michael Gove when they removed that need for academies to have QTS in 2012.
Since that time, there has been a decade where children and young people have been taught in academies by unqualified staff. We would assert that in recognition of the preparation teachers have to undergo, the term “teacher” should be reserved solely for use by those with QTS and that a person in training—or indeed, a specialist or person qualified in IT—should have a different designation. This amendment would ensure that, in future, all pupils in every school were taught by a qualified teacher.
When I was looking at the background to the debate today, I looked at what the Sutton Trust had said. It is a research institution that fights for social mobility so that every young person—no matter who their parents are, what school they go to or where they live—has the chance to succeed in life. In its seminal report, What Makes Great Teaching?, it said that the quality of the teacher is the most important factor in academic and non-academic attainment. We have heard from other noble Lords previously in Committee about the importance of leadership and a justification of the enormously inflated salaries enjoyed by heads within academy trusts, but the Sutton Trust research firmly places the attainment factor in the hands of the teacher in the classroom. Those of us in your Lordships’ House who have had the privilege—indeed, it is a privilege—to work in this profession would no doubt agree.
The research defined effective teaching as that which leads to improved student achievement and focused on six common components that should be considered when assessing teaching quality. First is pedagogical content knowledge. As well as a strong understanding of the material being taught, teachers must also understand the ways students think about the content, be able to evaluate the thinking behind students’ own methods and identify their common misconceptions. These are all areas covered in training teachers towards QTS. It is not just about having the knowledge and content of the subject itself; you have to have knowledge and understanding of how children learn in order to convey that knowledge. The research further identified the quality of instruction, classroom climate, classroom management—which I was very good at, as your Lordships might guess—teacher beliefs and professional behaviours, all of which impact on the quality of education.
I also looked at research by the University of Oxford’s Nuffield College from 2019, which found that pupils are more likely to be taught by unqualified teachers in academies than in maintained schools. It concluded that this widens class-based inequality because schools with more pupils from lower socioeconomic backgrounds tend to hire more teachers without QTS, and that in secondary schools
“this relationship in academies is almost double that in LA-maintained schools, revealing a role for academies in widening class-based inequality in access to qualified teachers”—
which seems like levelling down, rather than levelling up.
It further found that:
“More than a third of unqualified teachers in primary schools do not have an undergraduate degree and nearly a quarter do not in secondaries … policies that outsource the management of the education system and undermine professional accreditation are degrading the teaching workforce and widening inequality in access to qualified teachers.”
Furthermore, the report authors concluded that:
“This has likely undermined the quality of … education because teachers without QTS have less pedagogical training and less subject knowledge than their qualified colleagues.”
We believe the Government need to match the ambition of Labour’s national excellence programme, our plans and vision for education, whereby we will recruit thousands of new teachers to address vacancies and skill gaps across the profession. We will reform Ofsted to focus on supporting struggling schools and ensure we have the best fully qualified teachers in our schools by providing teachers and head teachers with continuing professional development and leadership skills training. This amendment will begin to address the current failings.
My Lords, I shall speak to Amendments 35B and 36, which amend Schedule 1. Schedule 1 extends certain provisions in maintained school legislation which currently apply to academies through funding agreements to academies directly.
I thank the noble Lord, Lord Knight of Weymouth, for Amendment 35B. He is seeking to require academies to employ qualified teachers and to be subject to the Secretary of State’s guidance on teacher pay and conditions that applies to maintained schools. However, the provisions in Schedule 1 that the amendment changes relate specifically to special schools and the removal of the power for the Secretary of State to prescribe that special academies employ qualified teachers. The amendment would not have the effect that the noble Lord is seeking to achieve.
However, it is clear that the intended purpose of this amendment and Amendment 36, which is about removing the exemption that academies have for teachers to have qualified teacher status, would provide for a restriction to a core tenet of the academy system, namely that, with the exception of special academies, all academy trusts have the freedom to employ those they believe are suitably qualified to teach in their academies and that all academy trusts can make decisions about pay and conditions of service in their academies.
The academy standards regulations will reflect existing requirements in the funding agreements, including those relating to enrolment in the Teachers’ Pension Scheme or the Local Government Pension Scheme. I have heard the fears expressed about a future Government using these regulations to undermine the freedoms that enable academy trusts to collaborate, innovate and organise themselves to deliver the best outcomes for their pupils, and I am carefully reflecting on those concerns.
On teacher pay and conditions, although all academy trusts have the freedom to set their own pay structure and conditions of service for teachers, we believe the vast majority follow some, if not all, of the guidance in the school teachers’ pay and conditions document. We believe it is right that academies continue to benefit from this freedom because it allows heads and trust leaders to have the flexibility to respond to their local context to support recruitment and retention of teachers. I am reminded of the phrase used by the noble Lord. I do not want to misquote him, but he spoke very powerfully on the first day of Committee about how important and attractive it was to trust our leaders, and that is exactly where these freedoms fall.
Academy trusts are also allowed the freedom to make their own decisions about who they believe is suitably qualified to teach pupils in their academies. However, most schools, including academies, understand the importance of well-trained teachers and choose to employ teachers who have undertaken initial teacher training and gained qualified teacher status. I agree very much with the sentiment expressed by my noble friend Lord Agnew in relation to the quality of the qualification as opposed to just the qualification in its own right. I am slightly baffled at your Lordships’ focus on this, as 96.9% of teachers in academy schools held QTS in November 2021, compared to 97.7% in maintained schools, so there is less than a percentage point difference between the two. The noble Baroness, Lady Morris, seemed to suggest that there are examples where it might be much higher. If that is the case, perhaps she would be very kind and share them with us, so that we can look into that.
The intention behind the amendment is to place additional requirements on academy trusts that would undermine the discretion and flexibility at the front line that fundamental academy freedoms give to heads and MAT leaders. That is not the intention of this Bill. On that basis, I would be grateful if the noble Lord would withdraw Amendment 35B and if the noble Baronesses would not move Amendment 36.
My Lords, I am grateful again for this half-hour debate and for the Minister’s reply. It is important that we have a vision for the whole system, now that we are moving to a single system, and perhaps this is something we will continue to reflect on.
I am grateful to the noble Lord, Lord Deben, for his comments. The core of the argument for having a single national pay and conditions arrangement for teaching relates to the difficulty of recruiting people into the profession. It is a critical profession for the future of our country and any society, and we must make sure that we recruit the finest people to be teachers—as one of their careers. These days, we are going to live longer and work longer. I am not saying that you necessarily have to do 40 or 50 years as a teacher, but would it not be great if, for one career, people wanted to be a teacher? It is easier to recruit people if they know that they have a predictable pay progression with a predictable, quality pension at the end of it, as part of their public service—as part of the motivation and the vocation around becoming a teacher.
I hear and respect very much what the noble Lords, Lord Agnew and Lord Nash, say about the output and the nature of the different routes into the profession. There is of course the assessment-only route. People who have been working for 20 years in the private sector or who are coming in from industry could perhaps have some brief training in some of the pedagogic or behaviour management elements that my noble friend on the Front Bench talked about and can then be assessed against the standards that are set around what we require from qualified teachers. They do not have to go through training; they can just be assessed against those standards. One of the things I pioneered when I was working at TES, with the TES Institute, was a route through the assessment-only process.
I am happy to withdraw this amendment. I hope this brief debate has given us cause and a pause to reflect on what kind of system we want for the teaching profession in the context of every school being an academy.
Amendment 35B withdrawn.
Amendment 36 not moved.
Schedule 1 agreed.
Clause 4: Academies: guidance
Amendment 37 not moved.
Clause 4 agreed.
Amendments 38 and 39 not moved.
Clause 5: Power to give compliance directions
39A: Clause 5, page 5, line 11, leave out “satisfied” and insert “the Chief Inspector has given notice that an inspection of the Academy proprietor’s operations and educational provision has identified”
Member’s explanatory statement
This amendment, along with the amendment to Clause 6, page 6, line 11, in the name of Lord Knight of Weymouth, is designed to require Ofsted to inspect multi academy trusts and restrict the use of the Secretary of State intervention powers to when an inspection has revealed the need for such powers to be used.
My Lords, I rise yet again. This substantial group is about intervention and termination powers. Most of the group is made up of stand part debates on a series of clauses. My amendments are about a level of accountability for the Secretary of State around the use of powers. The clauses we will be thinking about in this group relate to the power for the Secretary of State to give compliance directions, give a notice to improve to an academy provider, impose directors on the trust and then, if none of that works, terminate both the single academy agreements and the master agreements, perhaps after seven years’ notice by mutual consent or if the academies are perceived to be failing, if the trust becomes insolvent, after failure to address concerns or after warning notices. That is what the set of clauses that we are about to debate is all about. They are substantial and, in my judgment, overweening, and that is why I have also signed up to the stand part debates in the names of the noble Lords, Lord Agnew, Lord Nash and Lord Baker.
My problem at its heart is the sense that the Secretary of State becomes judge, jury and executioner. The Secretary of State is taking powers, essentially, I think in reality, through a network of regional directors, as they are now called, and officials appointed on a regional basis. They will be monitoring the performance of academies across anything and everything they do and will then be suggesting to academies that do not do what they want that they have this huge range of powers and will make them do as they are told. I am mindful of the discussion we had earlier, what the noble Lord, Lord Baker, said and the advice from Stone King about how that might impinge on the independence of the trustees of multi-academy trusts. I was grateful to hear the Minister’s reassurance that the Government have been given legal advice that it will not, but I still have concerns.
My amendments would add in Ofsted, the Office for Standards in Education, and once it has made a judgment about a multi-academy trust—yes, my amendment says that Ofsted should now inspect multi-academy trusts as a whole, not just the individual academies—that can act as a trigger; it is acting as the judge or jury and the Secretary of State can then act as the executioner. An independent party will have been able to have a look at it, and one would assume that Ofsted, in coming up with its framework for how to inspect multi-academy trusts, would be informed by the academy standards that eventually, in one form or another, we think will be in place.
I would anticipate that the MAT inspection would look at the educational quality and safeguarding and governance arrangements and ensure they were sound, and at the trust’s compliance with various regulations, including financial. When that judgment is passed, action can be taken. All my amendment seeks to do, whether perfectly or imperfectly, is to introduce that.
In thinking about the stand part debates, of course there are questions about some of these clauses. Clause 6, which provides the power to give notice to improve, as I interpret it, reflects the academy agreement academy by academy, rather than the master agreement with the whole academy trust. Clause 6(4) includes the phrase “make representations”. I should be interested to know to whom—one assumes the Secretary of State. In a world where every one of 25,000 schools is an academy, one assumes that they will not all be failing at once. Let us say that the figure is 1%, if we are generous, which is 250 schools at once making representations. In reality, they will be made not to the Secretary of State but to the regional directors. I should be interested to know how the Minister sees the representations process working, because it is as close to some sense of appeal as we have in the clause. Subsection 5 says that the Secretary of State “may make regulations”. Will those regulations be one by one, school by school? Perhaps that gives a little bit of power to Parliament, but I should be interested in some clarification of that.
Subsection (6) seems pretty wild:
“A notice to improve may … require the proprietor to obtain the Secretary of State’s consent for”
almost anything they then do. What is the point of carrying on chairing a trust or being on the trust board if every decision you make is then subject to Secretary of State approval? That seems a bit wild to me.
I am struggling the most with Clause 7, on the powers to appoint or require the appointment of directors. Obviously, I want Ofsted to be the trigger, but I am still concerned about how this will work. For those who are not involved in multi-academy trusts, we have members and members of the trust board, and the members of the MAT appoint the trustees, the members of the trust board. Clause 7(2) proposes that the Secretary of State directs “the proprietor”. Is that a direction to the members to use their powers and responsibility, when they meet annually, to reappoint the trustees? Is the proprietor in this context the members, who then appoint the people the Secretary of State chooses, or is it directing the trust board, in which case, it is subverting the role of the members altogether, which feels quite challenging? The only point I could find at which the legislation mentions members is in Clause 7(2)(c), where it refers to
“the proprietor and its members”.
That suggests that the reference in paragraph (a) is to the proprietor being the trust board, so it feels to me as if the members are being undermined by this clause, which is problematic.
Then there is the fundamental policy question about remuneration in subsection (5). I am not absolutely against remuneration. I spend many days every month chairing a multi-academy trust board for nothing, and there are times when my family question why I do that, so part of me is sympathetic to the idea of some remuneration, but how will it look in practice? There is the issue of motivating people like me to do this for nothing, who then see this other bunch of people who suddenly start getting paid. Will that not raise the question in my mind and that of other trust board members of whether that is fair and whether they should be paid? A potential financial pressure might be being created there. My more significant worry is that the regional directors will end up having a bunch of usual suspects they go to—they will probably be consultants—who will end up being paid to sit on boards as interim trustees.
Perhaps this is how I satisfy my family: perhaps I will chair the trust board, become a usual suspect and be asked every now and then to sit on an interim board and turn it around, for my sins. Perhaps I will get three, four or five and it might end up being a living; I do not know. I am interested how this will work in practice, because my sense is that we will have quite a number of MATs where these intervention powers may be necessary at different times, and I should like to know how that is likely to play out.
Finally, perhaps the Minister could reflect on the interplay between master agreements and individual academy agreements, which feels quite muddled as I read through this set of clauses. As a MAT, a single problem in one of your academies, if people do not like the cut of your jib, could end up with you having the master agreement taken away and losing the whole thing. All of this feels disproportionate; none of it feels well thought out. It all feels very rushed, as ever with this Bill, and yet again, my plea to the Government is to take some time, do the regulatory review, publish the outcome of the consultation on the review and come back on Report with something informed by the sector and by proper consultation. I beg to move.
My Lords, I remind the Committee that the noble Baroness, Lady Brinton, is taking part remotely. I now invite her to speak.
My Lords, I start by apologising to noble Lords who have their names against amendments and clause stand part notices in this group. The rules for remote contributions mean that I am always called after the mover of the first amendment in the group; I would have wanted to hear other expert contributions before speaking.
Amendments 39A and 39B in the name of the noble Lord, Lord Knight, make it absolutely plain that the Secretary of State’s powers should be used only when an Ofsted inspection has made it clear that there are issues. Amendment 39C in the name of the noble Lord, Lord Mendelsohn, asks for further qualification to inform a Secretary of State’s intervention decision on the replacement of directors or trustees, which include those who pose
“a risk to the duty of the institution”.
I hope that this would also include those who do not respond to safeguarding concerns. The detail of this comes to the nub of the issue that we have faced in our day and a half of Committee so far: exactly how the Bill will work in practice.
Turning to the 14 clause stand part notices in this group for Clauses 5 to 18, I hope that, after our debates so far in Committee, the Minister is in no doubt about the concern right across the House, including from all the former Education Ministers present, about the first part of the Bill on academies. The noble Lords, Lord Baker, Lord Nash and Lord Agnew, have made it absolutely plain in our debates today and last week that this Bill, especially this part of it, is not fit for purpose and that it would be sensible to delay until more detail can be provided to Parliament, the education sector and parents.
Normally, when a major change in the structure of our entire education system occurs, there has been broad consultation with the public, schools and the bodies that deliver educational services to education directly. That just has not happened here. It is evident that your Lordships’ House remains concerned that this part has not been thought through in the detail needed. All schools that are funded through the public purse becoming academies, bringing virtually all schools under the direction of the Secretary of State, is one such major change.
That brings us to the other conflicting issue to which noble Lords have referred in almost every debate on each grouping: the Henry VIII powers that the Secretary of State will take on in the Bill; again, without wider consultation or understanding of the implications. I want to focus on the latter point for a second. Page 55 of the White Paper, Opportunity for All: Strong Schools with Great Teachers for Your Child, sets out the standards, regulation and intervention from the department’s perspective. Given the debates we have had, the White Paper is remarkably coy about the powers of the Secretary of State. In fact, according to the schedule on page 55 of the White Paper, the Secretary of State’s only role is to sign new funding agreements and amend them “for material changes”. Intervening in schools is listed as happening by the regions group, on sufficiency, admissions, safeguarding, attendance and ensuring quality; whereas the Bill appears to give decisions over these powers directly to the Secretary of State. So, what is on the face of the Bill sets out neither a strategic framework nor the detail of how it will work in practice; it also contradicts the White Paper.
This reflects the difficult debate that we are having at the moment. My noble friend Lady Garden of Frognal said during our debate on the first group of amendments that there should be delays in the progress of the Bill until some of these matters are clarified and put out for consultation. Other noble Lords have said the same; they are right. As more and more issues and concerns emerge, grouping by grouping, it is not right to proceed until they are discussed and then consulted on with the wider public.
As the noble Lords, Lord Agnew and Lord Nash, made clear in our debate last Wednesday, the Academies Minister has already had to take a large number of decisions in relation to schools that are not maintained. Some of us argue that this results in a closed and untransparent system that is particularly opaque for parents, their children and their communities when key and serious decisions need to be made about their local school. It now appears that these powers, given to the Secretary of State but with a recommendation presumably to be made by the relevant Academies Minister, will apply to all 20,000 publicly funded schools once the Bill has gone through. How on earth will this work in practice? Also, how will it be publicly accountable to the parents and communities that these academies will serve? Can a junior Minister manage this workload or will the practicalities of it mean that it will be made by invisible and unaccountable civil servants?
In the Clause 3 stand part debate earlier, the Minister said that the Government will always consult the sector, but I did not hear anything about consulting parents and communities on changes to their local schools. I hope that the Minister can provide some answers or a timetable for your Lordships’ House as to when our many questions can be answered in detail and then debated properly; otherwise, we must delay the next stage of the Bill until we know and understand more about what the Government are trying to achieve through it.
My Lords, I agree with everything that the noble Baroness said; I congratulate her on saying it.
May I express the hope, which I think is in the interests of many people, that we might finish these clause stand part debates before the dinner hour? Every morning, as I leave my apartment to come to the House of Lords, my wife waves me away with the comment, “Don’t speak too much.” So I do not expect to elaborate again all the points that the noble Lord, Lord Knight, made. In fact, I do not intend to move my stand part notices for Clauses 8 to 14 at all because they use exactly corresponding words in the funding agreements. Clauses 16 to 18 are exactly the same; I do not intend to move my amendments on them in order to accelerate the movement of the House.
I will say a just few words on Clause 5, which gives the Secretary of State the power to give directions rather than advice. The noble Baroness, Lady Morris, and I did not have that power. I would not seek it. No Minister has had it since 1870. I do not believe that it is right for Ministers to interfere with the actual management of schools at the local level.
Clause 6 gives the Secretary of State the right to get involved in schools’ financial matters and the running of schools. Again, I do not believe that that is the right function for the Secretary of State.
Clause 7 is a significant clause because it is the one that allows the Secretary of State to appoint a new board, governor and governing body. Ministers have never had this power. In fact, the noble Lords, Lord Agnew and Lord Nash, operated the whole problem of failing schools very effectively by using funding agreements. I recommend that their practice should continue, and that this measure should not be attempted in the Bill.
That is all I have to say. I hope that we will be able to proceed quite quickly.
My Lords, I appreciate that my noble friend the Minister is in a difficult position; I am sure that she is reflecting greatly on the points that noble Lords across the House have made. However, as we are here, I will make a few further points. Some of them might be a bit technical; I apologise if that is the case.
On Clauses 5 and 7, I should say at the outset that, as my noble friend Lord Baker said, when I and my noble friend Lord Agnew were Academies Minister—for a combined period of seven years—neither of us felt at any stage that we did not have enough shots in our locker or enough in our armoury to deal with difficult trusts. We feel that Clauses 1 to 18 are unnecessary, which is why we have joined our noble friend Lord Baker in trying to strike them out.
Dealing specifically with Clause 5, which covers the power to give a compliance direction, this can be given if the Secretary of State is satisfied of a breach or likely future breach of any enactment or funding agreement, including a master funding agreement. There is no concept of materiality, which there is in many funding agreements, and no right to make representations. Anyway, it is unnecessary because under contract law, the current regime for academies, if a party breaches or threatens to breach a contract—that is, a funding agreement—the other party can require that party to perform the contract. They can issue a notice requiring them to perform it; if they do not, they can go to court to seek an order requiring performance. The DfE has these powers already, it just needs to use them where necessary.
Also, under the trust handbook, the DfE can already issue a notice to improve. I understand that the DfE says that the compliance direction will allow it to issue notices for minor breaches which may not warrant termination, but Clause 12 then goes on to say that the only consequence of failing to comply with the compliance direction is termination, so this justification is completely invalid. Anyway, as I have said, the department has the ability under contract law to impose what amounts to a compliance notice and to obtain an order for specific performance. Under the handbook, it also has the power to issue a notice to improve. Therefore, again, these powers are unnecessary.
Clause 6, covering notices to improve, can be issued for a breach of a duty under any enactment or under any academy agreement or master agreement. Again, there is no concept of materiality or significant weakness in the proprietor’s governance procedures or management. One could ask whether the DfE is competent to make this latter judgment. The only issue should be educational outcomes, as overseen by Ofsted. I will return to the point made about Ofsted by the noble Lord, Lord Knight, in a minute, but in any case, there is already the power to issue a notice to improve in the academy handbook, which the department can update as it goes along. Why is it necessary to legislate for it when we already have a structure which, as my noble friend Lord Agnew said, works perfectly well and the system understands?
I turn to Clause 7, on the power to appoint additional trustees, which the noble Lord, Lord Knight, has been very powerful about and which I referred to earlier. It talks about interim trustees on the face of it, but it is far worse than that. Under paragraph 2(b) of Schedule 2, if interim trustees are appointed, all existing directors cease to be directors automatically. Therefore, the noble Lord, Lord Knight, need not worry about chairing a board with all these paid people on it because he will not be there anyway.
Clauses 8 to 11 are, by the department’s own admission, unnecessary because they are already in funding agreements. They are not in all funding agreements and, to the extent that they are not, why should they be imposed on people who have negotiated and signed a contract? The department has not shown a necessity for any of this. It also says that a level playing field will be created in this way, which would be helpful. Well, we have a level playing field in the handbook. The department also says that this level playing field will help schools joining trusts to understand the rules of the game. Well, these rules are very clearly set out in the handbook and the model funding agreement, to which all schools are subject on becoming academies.
Clauses 13 and 14 relate to existing powers. Clause 14 directly corresponds to existing funding agreements but goes wider, dealing with any breach of funding agreements or where the Secretary of State considers the standards of pupil performance unacceptably low. This takes us back to the whole argument about standards.
Regarding Clause 15, under contract law there is, as I said, the right to terminate the master agreement for a breach, so the clause is unnecessary.
Turning lastly to the points raised by the noble Lord, Lord Knight, about Ofsted, as a number of noble Lords have said, we were promised a regulatory review, which is frankly far more important to the sector than tinkering with funding agreements and existing arrangements. That regulatory review would presumably look at how the DfE, regional directors, the ESFA and Ofsted all interact with each other. We might well have a consensus that Ofsted inspects MATs but only, I would say, in relation to the educational outcomes, the outputs and the safeguarding, which, after all, we all should be concerned about. I do not think that it is set up to inspect the organisational structure of the MATs operation in the broader sense. That is also not relevant. If we have the outputs, we have the educational outputs, which is exactly why we need a regulatory review—to discuss these points.
My Lords, I speak on behalf of my colleague, the right reverend Prelate the Bishop of Durham, and declare his interest as chair of the National Society.
I speak very briefly against Amendment 39C. It is well intentioned but poorly drafted. Its wording is too broad and too open to interpretation. For example, what would constitute “supportive”? How would “other considerations” be interpreted? As it stands, this amendment is unable to have meaningful impact.
My Lords, my degree of fellow feeling for the Minister is growing, as it was when the noble Lord, Lord Knight, was talking, because of the amount of nodding and smiling in agreement behind her from her distinguished predecessors in the post—both of whom are true believers in academies—saying that this series of powers is unnecessary. The noble Lord, Lord Nash, has given us a classic example of “Don’t make us pass this because you can do it already. You’re effectively wasting ink.” The fact that it comes from the Secretary of State and not from another structure merely enhances the problems that there already are on this.
I would be interested to see what the down side of going back would be if we were to go through this. Can the Minister point out what the problem is with having this all in the office of the Secretary of State? Is it going to the Secretary of State themselves and this is some form of punishment for whoever holds the position, for having that amount of power? It is going to concentrate everything and it is already done. What great failings are we addressing? This is not the first Bill where we have thought that something must be done so we do it and then discover that it can already be done somewhere else. The Home Office normally holds the record for this, but if the Department for Education is going into some sort of competitive tendering process on this, I hope that the Minister can tell us how. Possibly it is some sort of Whitehall competition. If there is a problem, can the Minister identify it for us?
I appreciate what the right reverend Prelate has said about Amendment 39C. I was going to ask the Minister whether she could give us some description of what this would mean in practice if it was implemented. I appreciate that there may be problems with it. There are a series of arguments and messages running around the place about certain smaller religious groups that are getting very worried about this. What would be the result here and what is the Government’s thinking about how smaller religious schools will fit in?
The Government are in a bit of trouble here. I have not previously sat through a debate where there has been no support at all for what the Government are trying to do. I do not see how the Bill can leave this House intact. It is becoming quite urgent for the Minister to share with us the Government’s intentions around it. I appreciate that may not be possible today, but on Wednesday we should have some indication of how the Government intend to respond. This is getting repetitive and very frustrating. Deep concerns have come up through this discussion that demonstrate again the failure of the Government to engage with academies, particularly on their approach.
My noble friend Lord Knight makes very sensible suggestions about the appointment of trustees, which highlights the issues around remuneration. We get the impression that the Government have not thought this through sufficiently. He rightly highlights the dangers of a gang of usual suspects taking roles—although he did not rule out being one himself. This makes us all realise, the Bill being as it is, that none of us has the first idea where the Government will take us. This is not a sustainable position for the Government to put the Minister in day after day as we go through Committee.
The Bill is muddled and rushed and has not benefited from the regulatory review. We do not understand the haste. There is no clarity about how all this will work in practice. The noble Baroness, Lady Brinton, summed it up really well. She said there was no strategic framework and no detail, and that it does not reflect the White Paper. I am afraid that is where we find ourselves. Several noble Lords have proposed a delay. It would appear a justifiable proposal at this stage, given everything we have heard. It would be in the Government’s interest—perhaps not today but on Wednesday, before we go much further—if we could have some indication about what they are going to do about the fact that they clearly will not have sufficient support to get the Bill through as drafted.
I start by acknowledging the noble Baroness’s last comments. I will endeavour to come back on the next day of Committee with more clarity on the points she raises.
I thank my noble friends Lord Agnew, Lord Baker and Lord Nash, who have so much experience in this area, for discussing their concerns in respect of Clauses 5 to 18 with me ahead of today’s Committee. As we know, the vast majority of academy trusts are well managed and meeting their obligations, but it is right that the Secretary of State should be able to step in where trusts fail to safeguard children’s education and public money.
These intervention powers form part of a toolbox of measures enabling the Secretary of State to intervene in trusts in a proportionate way. The powers enable the department to tackle failure at the multi-academy trust level. In response to my noble friends and the noble Lords, Lord Knight and Lord Addington, and the noble Baronesses, Lady Brinton and Lady Chapman, I shall attempt to explain why these powers are necessary, offer some assurance as to how they will be used proportionately, and summarise our plans for building confidence in the department’s decision-making processes.
The powers are necessary for two main reasons. First, they will provide a strong platform on which to build a fully trust-led system. Under the current framework the Secretary of State’s intervention powers are set out in individual funding agreements, as we have heard. These powers can vary, depending on when the agreement was signed. In the case of a multi-academy trust, there may be several funding agreements with different termination provisions. We believe it is the right time to create a more coherent trust framework under which the Secretary of State’s powers can be applied consistently and transparently.
Secondly, the powers will allow the Secretary of State to intervene, where necessary, in a more proportionate way. The current tools are limited and blunt, relying heavily on the power to terminate the funding agreement. For example, Clause 5 will give the Secretary of State a targeted power to act where a trust is failing to fulfil a specific legal duty. This could include, for example, not complying with the new attendance legislation under this Bill or a misuse of funding.
My noble friends have suggested that the Secretary of State could enforce such requirements under common law by taking legal action against the trust for breach of contract. I fear that such an approach to enforcement would be costly and burdensome for both the department and trusts. Instead, the Bill provides for a straightforward remedy, while allowing for resolution through legal action as a last resort.
Through Clause 6, the Bill incorporates into legislation the existing power for the Secretary of State to give a notice to improve to an academy proprietor. This power is currently set out in the Academy Trust Handbook, an annexe to the funding agreement. A notice might be issued, for example, where there was weak financial management. This could include where a trust had missed the deadline for approving the budget for the academy financial year or authorised staff compensation payments above delegated limits.
The noble Lord, Lord Knight, asked about representations relating to Clause 6. The existing funding agreement provisions relating to termination provide for trusts to make representations in specific circumstances. In practice, as the noble Lord said, these would be representations to the regional director. This power is intended for intervention at trust level where a trust is not meeting a legal obligation or there are serious weaknesses in governance. The regional directors would of course take account of trust representations before exercising their power.
Thanks to the work of my noble friend Lord Agnew and others, we have in place more robust oversight of financial management and governance in trusts. These measures will place such improvements on a stronger and clearer legal footing. They will also sit within a revised framework which allows for intervention to be escalated, where necessary, without requiring the funding agreement to be terminated, which is the sanction now where a trust fails to comply with a notice to improve.
In particular, Clause 7 allows the Secretary of State to direct a trust to appoint additional directors—for example, to remedy a specific weakness. It also allows the Secretary of State to replace an entire trust board with a board of interim trustees. We heard a number of noble Lords express concerns about this. The Bill also provides for trustees appointed in this way to be remunerated, although our general expectation is that academy trustees will continue to act on a voluntary basis.
May I seek some clarification on that point? Will the payment of trustees and the interim executive board be the same for maintained schools? There is a parallel situation there, where a governing body of a maintained school is not strong and an interim executive board is put in place. Are the Government proposing that they be paid as well in the intervening period?
I will come back to the noble Baroness on that point. I do not have the answers to hand but I will write to her.
We believe that there will be circumstances where it is right to remunerate trustees who have the particular skills and experience required to tackle the most serious failings in governance and management. These powers offer an alternative to terminating the funding agreement, which could be costly and disruptive to children’s education.
We would expect any additional directors and members of interim trust boards to be drawn from our strongest trusts, in line with our aspiration for a trust-led system. If noble Lords have colleagues who are trustees, or are trustees themselves and wish to discuss this further, I am happy to undertake to meet and explore this point.
My noble friends expressed concerns that these powers could be used in a heavy-handed way, such as terminating a trust’s master funding agreement on the basis of a single breach. As I have explained, the intention behind these measures is to create a more nuanced framework for intervention which avoids resorting to the threat of termination, while ensuring that weaknesses can be addressed. Any Secretary of State is bound by common-law requirements of proportionality. This means that they would terminate a funding agreement only on the basis of a material breach. Moreover, except in very limited circumstances—for example, where a trust is insolvent—the Secretary of State may terminate a funding agreement only after exhausting other options.
In general, the Bill provides for termination only where a trust has not addressed concerns raised through an earlier intervention, whether a compliance direction, a notice to improve or a termination warning notice. I agree that there should be proper scrutiny of how the Secretary of State, through regional directors, exercises any powers of intervention in academies and trusts. The Government’s recent schools White Paper announced a plan for a review of regulation. I assure the Committee and my noble friend behind me that, as part of that review, we will—
Given that the regulatory review seems to be so significant in the Government’s considerations and has come up many times, and that we are discussing pausing the Bill—I know the Minister has not yet engaged directly with that—I wonder whether we could have some idea of the timescale on the regulatory review. Should we wish to suggest a pause, we could make sure that it was for sufficient time, but not too much time, to allow us to benefit from the findings of that review.
We plan for the review to be launched in the coming weeks. I cannot give the noble Baroness an exact date, but I think I am allowed to say “shortly”. I have probably said more than I am allowed to.
I will go back, because this is important. The noble Baroness is right to raise the regulatory review; we see it as very important. As part of that, we will look at how we provide for the scrutiny of how these powers are exercised. Critically, we will do that in a way that wins the confidence of the sector.
I have reflected on my noble friends’ concerns, but I believe that, taken together, these clauses create a sound framework for robust but proportionate intervention as we move to a fully trust-led system.
Amendments 39A and 39B in the name of the noble Lord, Lord Knight of Weymouth, envisage a new role for Ofsted in inspecting multi-academy trusts, and make the decision to issue a compliance direction and a notice to improve contingent on the outcome of such an inspection. Currently, the department relies on a range of evidence from a variety of sources to build up a joined-up picture of each multi-academy trust, to inform decisions about intervention. This includes evidence on finance and governance, as well as Ofsted’s school inspection judgments on educational performance.
Through the regulatory review, the department will consider the evolving role of inspection in a fully trust-led system. This will include consideration of how inspection of multi-academy trusts would be co-ordinated with our wider regulatory arrangements, as well as how it would interact with school-level inspection. I hope the noble Lord will agree that it is important that the review runs its course before we make any decisions in this area. He also asked a number of quite specific questions. If I may, I will write in response.
I commend Clauses 5 to 18 standing part of the Bill. I also ask the noble Lord, Lord Knight, to withdraw his amendment.
My Lords, the noble Lord, Lord Knight, is right about getting Ofsted into multi-academy trusts. It would make a great difference to how parents are able to interact with the eventual system. Parents need the level of information and reassurance that will come from an Ofsted report, and I hope it would be done in a way that, as others have suggested, is very much focused on the educational aspects, which is where Ofsted’s expertise lies.
I am grateful for those last comments, and that I do not have to speak for six minutes before I get my food while others discuss the national food strategy.
I am pleased to hear that, all being well, on Wednesday the Minister will be able to come and give us a little more information about the Government’s intentions, which is really important. It is also helpful that she was able to give us a vague timescale of “in the coming weeks” on the regulatory review. If on Wednesday she was able to give a little more detail on that timescale, I think the whole sector would be really grateful in terms of understanding the sequence of how things are likely to play out on all this.
The Minister talked about the blunt powers in agreements that she is looking to replace with a more nuanced and consistent response through the series of sequences, yet many of us are worried that the nature of the Bill, as written at the moment, will still be heavy-handed. If only all current Secretaries of State paid attention to their common-law responsibility to proportionality, I think we would all be a lot happier in this place.
The issues around paying and governance are issues to reflect on. All those many years ago, when I was Schools Minister responsible for academies, among other things, I commissioned some work around governance but it never really got anywhere. There may well be reasons why we want the ability to bring in people with a much more professional approach who therefore might be paid, but we need a really full debate around that. The people who give of their time voluntarily to be school governors, multi-academy trust trustees, ambassadors for local schools, et cetera, do so willingly, and we have to be really cautious about interfering with that by offering to pay even a few.
We look forward to hearing more on Wednesday. I do not think the Committee is persuaded about these clauses as they stand. I am sure the comments from my Front Bench about what will happen if we do not get a good response are being listened to by Ministers, but I am happy to withdraw my amendment.
My Lords, I thank the Minister for carefully explaining the Government’s justification for doing this. She is in a difficult and unenviable position, but I do not think anybody could have handled it better.
What the Government need is time to think about this and to reflect on what is needed. I am fairly clear what they are getting at, and it is a very narrow thing they want to do. I do not think that can be covered by tinkering with the existing 18 clauses, quite frankly. It will mean a redraft and new clauses, so I very much recommend what the noble Baroness, Lady Brinton, said on the screen: we should gain time. That is to say that Report on the Bill should take place in the autumn, not in July. The Government really have to reflect carefully and define their targets more precisely than they have, so that solutions can be given. My three friends and I would be able to help and co-operate with that as much as possible. I very much hope that on Wednesday my noble friend will be able to say that Report will be done in the autumn.
Amendment 39A withdrawn.
Clause 5 agreed.
Clause 6: Power to give notice to improve
Amendment 39B not moved.
Clause 6 agreed.
Clause 7: Powers to appoint or require appointment of directors
Amendment 39C not moved.
40: Clause 7, page 8, line 7, at end insert—
“(3A) Where the Secretary of State proposes to give an interim trustee notice to the proprietor of one or more Academy schools with a religious character, the Secretary of State must first consult the relevant religious body for each Academy school with a religious character in the proprietor’s care.”Member’s explanatory statement
This amendment requires the Secretary of State, before giving an interim trustee notice to the proprietor of an Academy school with a religious character, to consult the relevant religious body for the school.
Amendment 40 agreed.
Clause 7, as amended, agreed.
Before the House is resumed, I draw attention to the clock, which has been stuck for a long time at 10 past three, as indeed, I understand, have all the clocks in the House. Since this is an education Bill and to do with the world of academia, I remind your Lordships of a poem written by Rupert Brooke just before the First World War. It was a nostalgic poem, because he was not very happy living in Germany at the time. He ends the poem:
“Stands the Church clock at ten to three?
And is there honey still for tea?”