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We therefore are not attracted to the juxtaposition proposed in Amendment No. 4 of different duties assigned to local authorities in relation to the provision of education, on the one hand, and the provision of children's services, on the other. We want a single set of duties on authorities acting in a far more joined-up way than has often been the case, which, again, I think that the noble Lord, Lord Dearing, would support. The key issue is that local authorities take all of those duties seriously. We can put them as much as we like in Bills, but they must be taken seriously. We seek to achieve that with the reforms that I have just mentioned; that is, the creation of single children’s services departments, supplemented by the development of children’s trusts, which seek to instil more services in a complementary relationship with local authorities.

The noble Baroness, Lady Walmsley, tabled Amendment No. 5, which would add a duty of well-being. This issue, again, is of vital importance, which is why we have already made provision in legislation for it. Section 10 of the Children Act 2004 already places a duty on local authorities which is far more powerful than that set out in this amendment. Every local authority which has education and social services functions under Section 10 is required to promote co-operation between the authority, its relevant partners and such other persons or bodies as the authority considers appropriate in order to improve well-being, as defined by the five Every Child Matters outcomes, one of which is education.

Re-stating aspects of that duty in the Education and Inspections Bill would serve to weaken the existing duty in the Children Act, as it could lead the courts to question why it was felt necessary to add it again and, in particular, whether we were seeking to qualify or circumscribe the existing wide-ranging duty by relating it mainly to educational provisions. In any event, to have the same duty expressed in two pieces of legislation is undesirable for the reasons that I have given.

As I said earlier, Section 10 of the Children Act obliges every local authority in England to promote co-operation between the authority, its relevant partners and such other persons or bodies as the authority considers appropriate. Those five outcomes are very clear: the physical and mental health, and emotional well-being, of children; protection from harm and neglect; education, training and recreation; the contribution that children make to society; and social and economic well-being. It goes without saying that these five outcomes promote not only the well-being of children, but also the best interests of the child, which is the second half of the amendment of the noble Baroness, Lady Walmsley. So we believe that Section 10 also meets this objective.

Taking Section 10 of the Children Act 2004 together with the provisions of this Bill will, we believe, meet the objectives which have been so well made in the course of the debate.



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Baroness Walmsley: Before the noble Lord, Lord Dearing, rises to respond, perhaps I may make three points. First, our Amendments Nos. 5 and 22 are not like Amendments Nos. 3 and 4 which seek to repeal and amend the 1996 Act; nor would we want to repeal or amend Section 10 of the Children Act 2004. Can the noble Lord confirm that an alternative approach—it is one we might consider at the Report stage—to mention in this Bill the duties under Section 10 of the 2004 Act in order to emphasise the importance of the well-being and the best interests of the child without falling into the trap he has outlined? Would he like to respond straightaway or shall I make my other two points?

Lord Adonis: We are in Committee and so I am happy to respond immediately. I know absolutely what my legal friends will tell me on this issue: that there is no need to mention in one Act the existence of another. The law is the law and the repetition of it in one Act does not give it any stronger force in another Act. I can hear the lawyers saying that even as the noble Baroness speaks.

Baroness Walmsley: That brings me nicely to my second point. The reason why it might be desirable to do so is to provide clarity for those reading the various Acts. The need to read one Act in the context of other Acts in terms of education policy is now becoming so complicated that perhaps we reaching the point where we should have a codification of education policy, and possibly even codification of the policy relating to other services for children. Certainly regarding education, it is now almost impossible to consider the issues in any new Bill that comes before us without recourse to a great pile of other Acts on the desk beside one. I wonder whether the Minister might consider that.

Perhaps I may make my third point on an issue that I neglected to mention earlier. One of the many reasons why we wanted to put the well-being and the best interests of the child into this Bill is because of its concentration on consulting parents. The interests of the child are not always properly expressed by a parent’s response to any consultation. It is the child who should be at the centre of this. Of course parents are vitally important and should always be consulted, but the child has to come first. That is among the many reasons why we want to put these words into the Bill.

Lord Dearing: I thank the Minister for his reply and I am delighted that there is no difference whatever in the House on the objectives. My only concern is that when the 720 pages of this Bill, its regulations and Explanatory Notes descend on a children’s services director, he will remember that there is a Children Act 2004 as well. What do you do when 720 pages of legislation land on your desk? You have to get on with it. I worry that in getting on with this, the other legislation will be overlooked. Let us think about it.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 to 10 not moved.]



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Clause 1 agreed to.

Clause 2 [Duties in relation to diversity and choice]:

Baroness Buscombe moved Amendment No. 11:

The noble Baroness said: Amendment No. 11 would adjust the wording of Clause 2 to reflect more accurately the role of local authorities in carrying out their duties in relation to diversity and choice. It is not clear to me how the functions that the local authority will carry out under this clause are powers. A local authority may well perform functions or tasks which achieve diversity in school provision and opportunities for parents’ choice, but I do not see how they will involve use of their powers. The Oxford English Dictionary describes functions as,

and as “official duties”, whereas power is described as:

This amendment seeks to establish firmly that local authorities play a functional role only in terms of local schooling. This is a drafting amendment which I sincerely hope the Minister is able to accept. I beg to move.

Lord Adonis: I may be able to deal straightforwardly with the amendment by saying that I propose to accept it. The purpose of Clause 2 is to ensure that local authorities exercise their functions under Section 14 of the 1996 Act with a view to securing diversity in the provision of schools and increasing opportunities for parental choice. I pay the noble Baroness the highest accolade possible by saying that parliamentary counsel believes that her change is an improvement to the Bill’s wording. I have never heard that said before. I am happy to accept the amendment.

Baroness Buscombe: Perhaps I may respond by saying three cheers to parliamentary counsel. I am very grateful to the noble Lord for his response and pleased that he can accept my amendment.

On Question, amendment agreed to.

Baroness Buscombe moved Amendment No. 12:

“( ) encouraging all schools to become foundation, voluntary or foundation special schools, and to acquire a foundation”

The noble Baroness said: I wish we could continue in that vein but fear that we will not. I shall speak to Amendments Nos. 12, 122 and 123.

Amendment No. 12 would require local authorities to exercise their functions with a view to encouraging all schools to become self-governing and to acquire a trust. Amendment No. 123 would place this duty on local authorities and the Secretary of State. This builds directly on the wording of the White Paper which committed the Government to that at paragraph 2.5. It states:



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These amendments reflect the vision of the education system expressed by the Prime Minister and Ministers over the past few years. In his speech of 24 October, the day before publication of the White Paper, the Prime Minister said:

This was not a new aspiration; indeed, it was the basis for DfES policy from as early as July 2004, when the Government published the five-year strategy for children and learners, which said:

It was repeated in the 2005 Labour manifesto, which said:

The policy came to full fruition in the White Paper, paragraph 9.3 of which states:

One could argue that the drive towards the new strategic role of local authorities goes even further back than that. After all, the 1992 Labour manifesto stated:

Clearly, the noble Lord, Lord Kinnock, now wishes that he had not made that commitment, but the present Government have taken it to its logical conclusion. The Prime Minister stated in the foreword to the White Paper:

Our amendment would place this commitment into statute.

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We seek reassurances that the dilution of the proposals since the publication of the White Paper does not signal a desire by Government to abandon the trust school model and the independence that it brings. We feel that placing a target duty in legislation will ensure that decision makers bring about the

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creation of the system of independent, non-fee paying state schools to which the Prime Minister is committed.

This is not to say that there have not been encouraging signs from the Government. We are particularly excited by the new role of the schools commissioner. The role of the schools commissioner is, according to the advertisement for that position to,

The candidate briefing pack for the role stated:

The pack also lists functions of the schools commissioner. These also point to a strong duty to encourage the development of trusts and academies. For instance, the schools commissioner will be expected to:

Final-round interviews were supposed to take place at the end of June, so I would be interested to know when the appointment of the schools commissioner will be announced. The description of the role is extremely encouraging. However, we feel that the move towards the system of independent state schools would be strengthened all the more if we placed an explicit duty on local authorities and the Secretary if State to encourage its development. Such a duty would be perfectly complemented by our amendments on community schools, which we shall come on to later today.

Finally, I would like to address the new clauses that I have tabled after Clause 32, Amendment No. 123. The first of these would define “self-governing school” and “Trust school”. While the Department for Education and Skills refers to the proposed,

as a trust school, as evidenced by documents such as What Trust Schools Offer, the phrase does not appear once in primary legislation. I am sure that there are reasons for this. I suspect that it may have partly been due to a desire to downplay the radical nature of the schools by disguising it as an already existing category. But it is evident that the new trust schools are more than just foundation schools. As the Prime Minister said on 9 February:

The radical difference between trust schools and foundation schools can also be seen from the models suggested by the Government; for example, the What Trust Schools Offer document gives the examples of a group of local schools working with a trust and a group of schools spread throughout the country working with a single trust.



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The potential for the development of national chains of schools run by business or charitable foundations is quite unlike anything that takes place at the moment. We feel that the proposed trust school deserves recognition in law beyond the description of,

Our amendment also states that,

The distinction between community schools and self-governing schools is essential to the rationale for this Bill. The ability to govern themselves and set their own ethos is one of the main reasons why voluntary-aided and foundation schools flourish. We feel that placing the term “self-governing” into the Bill would demonstrate a stronger commitment to the vision of a system of independent state schools than at present exists. I beg to move.

Baroness Massey of Darwen: I seek clarification from the noble Baroness, Lady Buscombe, who seems to be very busy this evening and somewhat got at. I read again recently the Second Reading debate in your Lordships' House, and at least one member of the party opposite spoke about the concern for the expansion of faith schools. If, as the noble Baroness says, it is seeking for all schools to become foundation or independent schools, surely that will increase the number of faith schools. There is a precedent for this. Since the academy programme began, one in three of the new academies are controlled by religious interest groups and three of these replaced non-religious schools. Is it the policy of the party opposite to increase the number of faith schools?

Baroness Buscombe: Perhaps the simplest way in which to respond to the noble Baroness, Lady Massey, is to say that our policy is that there should be freedom for schools of whatever nature. If they happen to be faith schools, that is fine. If the parents and the governing bodies want them, that is fine, too.

Lord Lucas: I think that I was probably the Back-Bencher to which the noble Baroness referred. I am disappointed not to find an amendment from the noble Baroness, Lady Massey, or someone else on that side of the House, dealing with faith schools, although I may not have spotted it. I was looking forward to having a serious debate on that subject, and a couple of my amendments touch on it. Allowing faith schools is one thing, but allowing them to select pupils who are only of that faith is something very different. Faith schools are an extremely constructive concept, but when they are allowed to become ghettos and to separate pupils in one way or another from the rest of the surrounding community, they can be very destructive. I hope that we will have a chance to discuss that matter later.

Lord Skidelsky: I do not quite agree with the noble Baroness, Lady Buscombe, but the duties of LEAs in relation to encouraging diversity and choice need to be spelt out a bit more fully. The Bill imposes a duty to consider parental representations. Clause 40 says:



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But parental preferences depend on having adequate information, and there seems to be an information deficit somewhere in this Bill.How are parents to know about the schools in their area? What information about the availability of education provision is to be supplied to them and by what means? Admittedly, they can go round schools and find out about them, but what are the duties of the local education authority to supply information to parents about the diversity of schools in their area—the results of schools and their educational philosophy—in order for them to exercise their choice? Perhaps I have missed it and it is there but, if it is not, I hope that the Minister will give some thought to creating that information mechanism. I have some ideas of my own on how that might be done, to which I shall refer later—but in the mean time, I shall be grateful for a reply.

The Earl of Listowel: I apologise to the noble Baroness for not being present for much of her moving of this amendment; I took a brief respite. I hope she has not already answered this point: there is a concern that, with the increasing autonomy of schools, some of the children with special educational needs we were talking about earlier might suffer some disbenefit. It is plain that schools need to work in partnership together if we are to provide better services for these sorts of children, especially special schools with mainstream schools. That does not necessarily impede what the noble Baroness is seeking to do, but I would be grateful if she could say something about that point, if she has not done so already.

Baroness Sharp of Guildford: It will hardly surprise your Lordships that from these Benches we have very little agreement with what the noble Baroness, Lady Buscombe, has said. As far as the Government’s vision is concerned, we see—to some extent—the point of local authorities being commissioners of education. We do not object to that.

We do not share the vision of independent state schools but, to pick up the point made by the noble Earl, Lord Listowel, we see schools as serving communities and being part of a system that serves communities. That will become apparent as we argue through some of our later amendments. We feel it is important that, as part of that system, schools are not set apart from each other to too great an extent. Yes, schools want a degree of autonomy, but the freedom they want at the moment is freedom from direction by central Government. The constant burden of bureaucracy imposed on them is creating chaos in our education system and putting a huge burden on our teachers.

We want our schools to serve our local communities and collaborate with each other. There is no need to set them apart in their terms of governance in this way. In no sense do we think it necessary to set them up as separate foundations.

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They work perfectly well, and have done for many a long year, as state schools, as we used to call them, although now they are called maintained or community schools. We are happy with them working as community schools, and we think the term emphasises what we want from them: a service within the community.

Lord Lucas: Surely the point is that they have not worked well for many a long year. There is a whole collection of schools, even in some high-powered Conservative LEAs, that continue to perform miserably. The whole LEA structure of one familyof schools has consistently produced some bad performances that are very hard to deal with, whereas individual schools in all sorts of parts of the country which have taken their fate into their own hands, having had the luck to get a good headmaster and senior management team, have managed to make immense progress. That is the motor to improvement that has proved itself, whereas LEAs have not.

Lord Young of Norwood Green: I hope we will not accept this amendment. Everyone knows that where we have ended up in the Bill, in comparison with where the Government started off in the White Paper, is the result of much controversy, heated debate and almost ideological positioning in the other place. The current Bill is a sensible balance. It is a compromise between the richness the Government believe can result from a diversity in educational provision, be that foundation schools, academies or faith schools, and the acceptance that there is a role for community schools. There always will be a role for them; they will be part of that rich tapestry of provision. The amendments seek to upset that balance; not just Amendment No. 12 but, as a natural consequence, Amendments Nos. 122 and 123 as well. I believe the Government have got the balance right when they say in Clause 2 that:

Those are two sound principles, which I believe are followed through in the Bill.
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Baroness Sharp of Guildford: I think a reply to the noble Lord, Lord Lucas, is required. Obviously there are some good schools and some bad, but by and large outside our inner cities—which have often been Labour-controlled rotten boroughs—our community schools have frequently worked extremely well. There are variations. We all know that the key issue is the leadership of the school. I entirely endorse the moves made by the Government to ensure proper trainingin leadership for schools, and we have seen a considerable improvement in that leadership as a result of their activities. Over the course of the years many of our local education authorities have served us extremely well. The problems are concentrated

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in metropolitan areas—and, if I might say so, concentrated where there have been rotten political boroughs.

Lord Smith of Leigh: I must respond to that point. As leader of a Labour metropolitan authority, I hope the noble Baroness was not referring to mine as a rotten borough. The comment of the noble Lord, Lord Lucas, identifying local authorities as the cause of educational problems, was controversial. It is much more about economic disadvantage and parents not being able to support their children. All local authorities want to do well, although not all do as well as others. I accept that some local authorities have been too complacent, and have not challenged schools about the way they deliver services.

I hope my noble friend will resist this amendment. I think it is going the wrong way. The Bill is alreadya compromise. It has gone far enough. Local authorities will need to be providers because I do not see a great number of people wanting to come in and provide the services, and in those challenging inner-city areas it will be particularly difficult.

Lord Adonis: If I may say so, my noble friend Lord Smith has made my speech for me. I welcome the noble Baroness’s support for the post of the schools commissioner, who has an important role to play in the way she described. She asked me specifically whether the final interviews have taken place and when an announcement will be made. The final interviews having taken place, an announcement will be made in due course.

I want to try and avoid getting into these wide-ranging debates. I accept that there is general agreement across the Committee, if I can try and bring us together, that not everything has worked perfectly, and I did not take the noble Baroness as thinking that it had. There is a good deal of room for further improvement. If that were not the case we could pack up and go home, and we would not need the many hours I can see in front of us.

Many local authorities have done excellent work. I have visited Wigan and seen my noble friend’s team in play, and I pay tribute to them. We all accept that in some cases there has been too much complacency, to use his word, regardless of the political control of the authorities. I gently point out to the noble Baroness that her party now controls some of the great cities, and some of them still have improvements to make in their schools. I hope we can regard the improvement of education as a shared endeavour across the parties.

I move to the detail of the amendments. Amendment No. 122, tabled by the noble Baroness, Lady Buscombe, seeks to add definitions of trust schools and self-governing schools to the Bill. She rather flabbergasted me by saying that she thought the reason we had not put these definitions in the Bill might be because we were trying to hide the fact that there were trust schools and self-governing schools. If that were the case, there would have been no policy initiative in which the Government had been less successful than in attempting to hide the concept of the trust school. If the soldiers getting into the Trojan

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horse had been marked as the praetorian guard of trust schools, they would not even have got into the horse, let alone penetrated Troy and stood any chance of getting out again. There is no desire whatever on our part to hide what we are seeking to do. We could not have been more explicit. Trust schools do not appear in the Bill for very precise legal reasons. I need to get into the realm of technical detail here to satisfy the noble Baroness on why we have done this, but I will do so briefly.

It is not our intention that existing foundation schools with foundations—that is the phrase used in the Bill to describe trust schools—of which there are around 90, will be trust schools as they are understood in the Bill. Yet they would be captured by the noble Baroness’s proposed definition as their foundations were not established under the School Standards and Framework Act 1998. A trust school is in fact—as is explicitly stated in Clause 18 and the following clauses—a foundation school with a charitable foundation with particular characteristics acquired under this Bill, not under previous provisions. The phrase,

is used throughout the Bill precisely because “trust school” would cover existing schools if we used the term to refer to all foundation schools with foundations in the way that the noble Baroness proposes.

The noble Baroness’s amendment would unpick and require the redrafting of a huge volume of existing primary and subordinate legislation. The noble Baroness, Lady Walmsley, said that she wished we would undertake more consolidation. I love the idea of having everything in one place but—having brought before the Committee a Bill which already extends to 248 pages, and will be much longer when we have all the regulations to which the noble Lord, Lord Dearing, referred—I hesitate to think of the reaction if I were now to propose such consolidation, including the bringing of all the provisions in respect of existing categories of schools into a consolidated Bill. Therefore, we do not think that sensible.

Similarly, the definition of “self-governing” proposed in the amendment would not be helpful in the Bill. This definition ignores the differences between separate categories of school, each of which has its own legally distinct governance arrangements. Of course, the Government encourage and themselves use the informal use of “self-governing” to characterise the range of schools which are not community schools. The noble Baroness quoted the Prime Minister in that regard. Last year’s White Paper uses the term in relation to foundation and trust schools. But for the reasons I have given it would not be appropriate to include the term in legislation over and above the detailed provisions which already exist for the distinct categories of schools concerned.

I turn now to Amendments Nos. 12 and 123. The duty in Amendment No. 12 would require local authorities to encourage all schools to become foundation, voluntary or foundation special schools and to acquire a foundation. It will not surprise the noble Baroness to hear that, for the reasons given by

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my noble friend Lord Young, that would not be appropriate. It would be a step too far. It would not be appropriate in all cases for a local authority to encourage all schools to become voluntary or foundation schools with a foundation. The way in which these amendments seek to impose this self-governing model in all circumstances would work contrary to the policy of giving schools the freedom to decide for themselves how they wish to develop to meet the needs of their pupils, parents and the wider community.

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