Academies Bill [HL]

Baroness Thornton Excerpts

Monday 28th June 2010 Lords Chamber

[Lord Greaves]

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

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

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

[Baroness Thornton]

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

[Lord Greaves]

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

--- Later in debate ---

[Lord Hodgson of Astley Abbotts]

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

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

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

[Baroness Thornton]

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

[Lord Phillips of Sudbury]

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

Academies Bill [HL]

Baroness Thornton Excerpts

Wednesday 23rd June 2010 Lords Chamber

[Lord Phillips of Sudbury]

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

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

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

[Baroness Thornton]

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

[Lord Hill of Oareford]

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

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

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

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

--- Later in debate ---

[The Earl of Listowel]

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

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

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

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

[Baroness Thornton]

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

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

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

In its view,

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

which other Members have mentioned. It continues:

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

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

Academies Bill [HL]

Baroness Thornton Excerpts

Wednesday 23rd June 2010 Lords Chamber

[Baroness Massey of Darwen]

I would not call humanism a faith; I would call it a belief.

[Baroness Thornton]

My Lords, I declare that I share the same belief as my noble friend Lady Massey.

I wish to ask some technical questions about employment and equalities law. The right reverend Prelate’s amendments are not innocent and possibly not sympathetic. I was the Minister who helped to take the Equality Bill through your Lordships’ House earlier this year, and I took part in many of the discussions on issues to do with the application of equalities legislation and employment law to religious schools and other establishments. I would like reassurance that the right reverend Prelate’s amendment does not seek to undermine or change what I thought was the agreement about the application of employment and equal opportunities legislation to all establishments and their employment practices. I am not completely happy with the agreement but it is the one that we came to in the course of that legislation,

I also seek reassurance from the Minister and the Government that they do not intend to accept the amendment and change the existing policy and practice, and that these schools—free schools, academies or whatever the Government decide to call them—will be expected to abide by the existing legislation in their employment practices.

This House has sometimes waxed lyrical about the number of guidance missives from what is now the Department for Education to schools on how they should undertake their employment practices. There is no question but that all maintained schools in this country have a clear idea about what their duties are as employers and how they should comply with them. Will the new schools be expected to find out for themselves what they should do? How will we ensure that they also abide by the law on employment practices and equal opportunities?

[Lord Baker of Dorking]

The noble Baroness, Lady Massey, referred to a debate that took place in this House some three years ago. At that time, some of us sought to move amendments to ensure that if new faith schools—not existing ones—were established, 25 per cent of the pupil roll should come from outside the faith or from no faith. For a fleeting moment the Labour Government supported us, as those who took an interest in these matters will remember; but as a result of a campaign by the Catholic Church which was—I cannot use the word “deceitful”—imaginative, shall we say, the Government ran away from that commitment. They sought to extend the threat to all existing Catholic schools and not only to new ones—the Catholic Church had established only two small new primary schools in 30 years—but the debate was about new Catholic schools. Anyway, as a result of that campaign, the Government ran away from that commitment.

However, the Anglican Church made a statement in the House—I see the right reverend Prelate nodding—which I completely support. I went to a Church of England primary school and I am not against church schools as such. There was nothing too emphatic about going to an Anglican primary school; it was not too passionate. It had all the attractive characteristics of the Anglican faith; it did not ask too much but it gave reassurance. The right reverend Prelate who spoke for the Church of England at that time said that, irrespective of the fact that the amendment had not been passed, when the Anglican Church established new faith schools it would ensure that 25 per cent of the intake would come either from outside the faith or from no faith. I would like some assurance that that undertaking is still in place. I do not expect the Minister to reply, because nothing is on the statute book, but reassurance from the right reverend Prelate would be most welcome. I maintain that it is sensible for children of different faiths to sit, play and eat alongside each other in school and to go home on the bus together, but I appreciate that sensitivities still exist. However, I still hope that that undertaking of the Anglican faith survives.

Academies Bill [HL]

Baroness Thornton Excerpts

Monday 21st June 2010 Lords Chamber

[Lord Greaves]

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

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

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

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

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

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

[Baroness Thornton]

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