Academies Bill [HL]

Lord Greaves Excerpts

Monday 21st June 2010 Lords Chamber

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

[Lord Greaves]

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

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

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

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

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

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

[Lord Adonis]

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

--- Later in debate ---

[Lord Hill of Oareford]

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

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

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

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

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

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

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

[Lord Greaves]

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

[Lord Hill of Oareford]

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

[Lord Greaves]

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

[Lord Hill of Oareford]

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

[Lord Greaves]

In writing?

[Lord Hill of Oareford]

Of course.

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

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

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

--- Later in debate ---

[Lord Bates]

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

[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.