Education Bill

MEMORANDUM SUBMITTED BY THE DEPARTMENT FOR EDUCATION TO THE PUBLIC BILL COMMITTEE ON CLAUSE 58 (E 110)

Reference: EBCC/2011/Note 21

To aid the Committee’s consideration of the Education Bill, this note provides further information on Clause 58 in relation to employment in religious schools including academies.

Position in the maintained sector:

1. In the maintained sector there is a distinction between the staffing arrangements in Voluntary Controlled or Foundation schools with a religious character and the arrangements in Voluntary Aided schools. Voluntary Aided schools can appoint up to 100% of their teaching staff on the basis of faith. Voluntary Controlled and foundation schools with a religious character can only reserve up to a fifth of their teaching posts as religious posts, where those teachers are specifically appointed to teach religious education.

2. In the maintained sector, it is possible for the Governing Body of a Voluntary Controlled or foundation school with a religious character to publish statutory proposals to change category to Voluntary Aided. As part of the statutory process the Governing Body must consult with the relevant faith group in relation to the schools e.g. the Bishop of the Diocese for Roman Catholic schools, or in the case of Church of England Schools, the Diocesan Board of Education. Such a change of category moves the school from minority to majority faith control at governing body level and removes the limit on the proportion of staff who may be appointed by reference to religious belief.

Position on Academy conversion:

3. We intend that all Voluntary Aided and Voluntary Controlled schools with a religious character will convert to Academy status "as is". This means that existing arrangements in relation to faith representation on the Governing body, the teaching of RE and the conduct of collective worship – as well as existing arrangements in relation to the employment of staff should continue unchanged. The Model Articles of Association and Funding Agreements of Academies with a religious character have been developed to ensure that this principle is preserved. In the case of staff at VC and foundation schools with a religious character, while the Funding Agreement is able to provide overall protections we concluded that new legislation was necessary to ensure parity before and after conversion and to preserve equivalent routes of redress for individual members of staff.

4. Clause 58 of the Education Bill , if enacted, would insert a new section (124AA) into the School Standards and Framework Act 1998 which w ould apply to all Voluntary Controlled and foundation schools with a religious character converting to become Academies . It statutorily maintain s the staffing position on conversion so that these Academies may not have more than one-fifth of the total number of teachers as "reserved teachers" including the Principal. This clause therefore ensures that the existing staffing position in Voluntary Controlled and foundation schools with a religious character is maintained on conversion and that they will not gain additional freedoms to appoint teachers on the basis of faith on conversion.

5. For a Voluntary Aided school with a religious character that converts to become an Academy, new legislation is not necessary since existing legislation already preserves the "as is" position. Such schools may continue to appoint up to 100% of teaching staff on the basis of faith.

6. Until these provisions are enacted, a combination of the Academies Act 2010 Commencement O rder and the funding agreement protect s the position of staff and applicants for posts in former Voluntary Controlled and Foundation schools that have converted to Academies , and ensure s that the se Academies gain no additional power to appoint teachers on the basis of faith when converting. This clause simply strengthens the protection for staff by making it statutory, in line with the position for staff at maintained schools with religious character , and ensures they have equivalent recourse to routes of redress.

Order to disapply section 124AA:

7. Subsection (2) of Clause 58 provides that the Secretary of State may make an order for a specific Academy, where the school was formerly a Voluntary Controlled or foundation school with a religious character, to disapply the one-fifth limit on reserved teachers for that individual Academy.

8. In the maintained sector it is currently possible for the Governing Body of a Voluntary Controlled or foundation school (minority faith representation) to follow the statutory process to change category to a Voluntary Aided school (majority faith representation). The process for making such an alteration is set out in Part 2 of the Education and Inspections Act 2006 and the School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2007 [1] and involves a five stage statutory process: consultation; publication of proposals; a representation period; decision (by the local authority); and implementation where proposals are agreed. The governing body has a right of appeal to the independent Schools Adjudicator if it does not agree with the local authority’s decision.

9. If a school in the maintained sector goes through the process outlined above and becomes a Voluntary Aided school it will at this point also be able to appoint 100% of its teaching staff on the basis of faith.

10. Given the ability for maintained schools to change status from a minority to majority faith representation through a change of category from foundation or Voluntary Controlled to VA, in turn giving a greater ability to select new teachers on the basis of faith, it would seem inequitable for Academies not to be allowed a similar opportunity. This Bill clause therefore allows an Academy to seek permission from the Secretary of State to change its governance and staffing arrangements. This provides parity with the maintained sector, and as is the case in the maintained sector, these changes would only be allowed after a thorough consultation process.

Policy on when section 124AA will be disapplied:

11. As with any significant change to an Academy's arrangements (to the extent that these are prescribed in the Academy’s Articles of Association or its Funding Agreement), a change to governance and staffing arrangements that involved amending those documents could only be made with the Secretary of State's agreement.

12. The Secretary of State would only issue an Order disapplying section 124AA where an Academy had consulted upon, and attracted support for, a change from minority to majority faith representation on its Governing Body. This equates to the position in the maintained sector, where the freedom for a voluntary controlled or foundation school with religious character (minority faith representation) to appoint up to 100% of its teachers on the basis of religion only comes where such a school changes category to Voluntary Aided (majority faith representation).

13. If an Academy proposes to make a change to its governance arrangements we would expect them to go through the following stages:

· Set out a clear proposal for changing their governance and staffing arrangements, including the basis on which they believe the change is needed and would benefit the school and wider community.

· The Governing Body would need to ensure that they consulted widely, openly and thoroughly, ensuring that all affected parties’ views were sought.

· A sufficient consultation period would be allowed so as to ensure all representations could be gathered.

· The proposal and representations would be sent to the Department for consideration. The Secretary of State would consider the representations and the effect of any change on the community and the schools in the area.

· The Secretary of State would approve or reject the change proposed by the school and, if necessary, agree appropriate changes to the Articles of Association and Funding Agreement of the Academy Trust.

14. At this stage the Secretary of State could issue an Order disapplying section 124AA of the School Standards and Framework Act 1998, as introduced by clause 58. The effect of this would be that existing legislation would apply, which would enable the Academy to select up to 100% of its teachers by reference to faith. This Order would always contain transitional provisions to protect the position of existing non-reserved staff. These transitional provisions would mirror paragraph 55 of Schedule 3 to the School Organisation (Prescribed Alterations to Maintained Schools)(England) Regulations 2007, which protects existing non-reserved staff on a change of category within the maintained sector from Voluntary Controlled or foundation to Voluntary Aided.

March 2011