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As Bagehot once famously said of Parliament, the,

If the evidence from those schools that are governed on this basis is that they are well governed, popular in their locality and have a very strong community mission, and that parents feel well served and are willing to send their children to them, I simply do not understand the alarmist statements made by the two noble Baronesses as to the evil effects that this would have. This is one option that schools and local decision makers can pursue where they think it appropriate. They will do so in the knowledge that it would be giving majority control to a trust whose bona fides they would willingly have accepted as part of the arrangement for the trust school to be taken forward. On that basis, and given our experience of voluntary-aided schools, this seems a perfectly sensible emulation of existing good practice in the schools system and not some breach of fundamental principles. The more one looks at the state education system, the less fundamental they appear, in any event.

Baroness Walmsley: I thank the Minister for his reply. I accept what he says about voluntary-aided schools perhaps benefiting from having more elected parent governors on their board of governors. I emphasise that we are talking about elected, not appointed, parent governors. The parents in those voluntary-aided schools may feel that they are more involved with the school anyway because of their shared faith, but we are not talking about faith schools—well, we are in some cases because some of these trust schools will be run by faith groups, but not all of them will be, so they will not all have that shared faith by which the parents can feel that they are involved with the school and that the board of governors, whoever they are, represents their point of view.

We are talking about many schools that will not be run by faith groups, so to reduce the number of elected parent governors on those boards to a paltry one person who is supposed to represent perhaps up to 2,000 sets of parents is very unsatisfactory on the part of a Government who say that they want to strengthen the power of parents. I would have thought that the Government should be saying, “Let’s have four, five or more elected parent governors”, but no. What are the Government afraid of? Do they think that parents do not want the best for the school? Do they think that they cannot get enough parents to become involved in the board of governors? I cannot understand why the Government are so much against this point of view. They are supposed to believe in democracy and real power for parents. Yet in practice they are taking power away from them. I simply do not understand it, but I am clearly getting nowhere, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 93 not moved.]

Clause 18 agreed to.

Clause 19 [Publication of proposals for alteration of school]:

Lord Adonis moved Amendments Nos. 94 to 100:

“( ) an increase in the number of pupils in any relevant age group,” (c) in the case of a foundation special school, it consists of any one or more of the following- (i) an enlargement of the premises, (ii) an increase in the number of pupils for whom the school is organised to make provision, and (iii) a change in the type of special educational needs for which the school is organised to make provision.” ““relevant age group” has the same meaning as in SSFA 1998.”

On Question, amendments agreed to.

Clause 19, as amended, agreed to.

Lord Adonis moved Amendment No. 101:

(a) the trustees of the school, and (b) the person or persons by whom the foundation governors are appointed.



Prescribed alteration

1. A foundation school which, immediately before the commencement date, was a foundation school having a foundation.

A relevant change in the instrument of government.

2. A voluntary school.

A change of category from voluntary controlled school or voluntary aided school to foundation school.

3. A foundation school which, having been a voluntary school immediately before the commencement date, changed category to foundation school on or after that date.

A relevant change in the instrument of government.

“the commencement date” means the day on which this Part comes into force, otherwise than merely for the purpose of enabling orders or regulations to be made;

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“prescribed alteration”, in relation to a maintained school, means an alteration prescribed under section 18.”

On Question, amendment agreed to.

Clause 20 [Proposals under section 19: procedure]:

[Amendment No. 102 not moved.]

Clause 20 agreed to.

Clause 21 [Right of governing body to determine own foundation proposals]:

[Amendment No. 103 not moved.]

Lord Adonis moved Amendment No. 104:

On Question, amendment agreed to.

[Amendments Nos. 105 to 108 not moved.]

Lord Adonis moved Amendment No. 109:

On Question, amendment agreed to.

[Amendments Nos. 110 to 113 not moved.]

Baroness Buscombe moved Amendment No. 114:

The noble Baroness said: I move AmendmentNo. 114 and speak to Amendment No. 115. Both amendments would remove the right of the local authority to refer proposals involving the acquisition of a trust by a school to the schools adjudicator. We do not see why the power is necessary, given the lack of any similar measure with regard to foundation proposals. We believe that the guidance on the acquisition of trusts, to which the governing body must have regard, is a sufficient safeguard.

I would like to draw noble Lords’ attention to the Government’s draft guidance, School Organisation (Prescribed Alterations to Maintained Schools) (England) Regulations 2006. Paragraph 12 of Schedule 1 to the regulations sets out the circumstances where the local authority can take advantage of its rights under the section. The circumstances are as follows. For the purposes of Section 21(3), a local authority may only require that such proposals specified in sub-paragraphs (1)(a) to (c) are referred to and adjudicated if:

the guidance

While these criteria seem superficially restrictive, the terms used still leave a great deal of power in the hands of the local authority. This sample suggests many pitfalls. How is the local authority to demonstrate that the governing body has failed to have regard to responses to the consultation? Would the governing body have had to have acted extremely

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unreasonably in its decision or would it be sufficient to cite a handful of vocal opponents to the proposed trust in evidence? Similarly, there are concerns about the nature of a “negative impact on standards”. Does this refer to standards at the school or the standards of all schools in the area? If all schools in the area, could a local authority not contrive some spurious argument based on its opposition to the trust model to justify referral to the adjudicator? It is difficult to decide what impact a foundation will have until it actually runs the school.

Such ambiguities risk allowing local authorities to thwart the movement towards the system of independent state schools that the Bill intends to create—a principle that has received support right across your Lordships’ House, from the Back Benches opposite to those that cross the House and those behind me. I believe that the statutory guidance together with the measures in Clauses 32 and 33 offer sufficient safeguards to remove the right of referral to the adjudicator. I remain unconvinced that the decision to acquire a trust differs to such a degree from becoming a foundation school that a special right of review is needed in this case. I beg to move.

Baroness Sharp of Guildford: I rise to speak to Amendments Nos. 116, 116A and 116B, which are in my name and that of my noble friend Lady Walmsley.

Amendment No. 116 is probing, because I wondered whether the Minister could explain a little more. We were unable to understand what the regulations were saying on this occasion. I wondered if the Minister could explain the regulations to us. Paragraph 3 is a lovely piece of speak:

and so forth. We would be grateful if the Minister could explain precisely what those regulations are trying to get at.

Amendments Nos. 116A and 116B we are putting forward on behalf of the Association of Colleges, which is worried about the position of further education colleges, particularly in relation to post-16 education and 14 through to 19 years. Clause 22 sets out the rights of interested bodies on any proposals made under Clause 20 and the referral of these proposals to the adjudicator in certain circumstances. Under the terms of the Bill, any school that wanted to establish or expand the sixth form would have to apply to the local authority for approval. We discussed a little earlier that the school organisation committees will now be abolished and it will be a matter for decision by the local authority itself. Yet, post-16 education is funded not by local authorities but by the local learning and skills councils. Therefore, local authorities would be in a position of approving new sixth-form education and the numbers associated with that, but with no accompanying responsibility to fund it. Many local authorities want the majority or even all the schools in their area to have sixth forms and the Government have made this easier under the terms of the five-year plan. New

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school sixth forms should offer to local youngsters different provision from that which is already available. That is not always the case. The opening of a new school sixth form can often duplicate courses at other post-16 providers. There needs to be a stronger system than that proposed under the terms ofClause 22, whereby the local authority will make a decision and only then can the adjudicator be asked to make a judgment.

Amendment No. 116A would enable the Learning and Skills Council and the local dioceses to refer any proposals to the adjudicator before the local authority takes the decision. The Association of Colleges has concerns that it would be much more difficult for the adjudicator to overturn an original decision and that, when asked, he or she would be able to intervene earlier in the process to ensure that all local views are taken into account. He or she is an independent arbiter. Their involvement would reduce the possibility of long running disputes that may occur when various bodies disagree.

Amendment No. 116B would specifically allow not only the Learning and Skills Council but also schools and colleges to refer a proposal to the adjudicator where it relates to provision for 14 to 19 year-olds. That would ensure that the Learning and Skills Council is not put in the difficult position of trying to represent the views of the Government as well as those of local providers. The colleges feel very strongly that they should be able to speak for themselves. The Government rightly want to promote choice, but it is vital that colleges and schools can participate actively in the decisions to ensure that the widest possible choice is offered locally. After all, they are the ones on the ground who best understand the needs of local people.

Lord Adonis: In respect of the noble Baroness’s last remarks, I understand the points that she makes about the post-16 provision and the need for full consultation. The Learning and Skills Council and local colleges would be consulted about the proposals.

With regard to the referral of trust proposals to the adjudicator, the important distinction that needs to be made is that a trust proposal of itself would not make any difference to post-16 provision or the post-16 character of a school. Any school, whether a foundation school, a non-foundation school or a trust school, that wishes to change the post-16 character of the school would need to publish statutory proposals under the arrangements that we debated earlier today. They would need to go through the statutory processes, including local decision making and, in practice, local decision makers would not be able to make those decisions unless there was a funding agreement with the Learning and Skills Council. Indeed, there are recent decisions by the adjudicator in respect of that matter. The adjudicators have not been prepared to agree to post-16 provision where no funding arrangement agreed by the Learning and Skills Council is in place.

I understand the noble Baroness’s point that the body providing the funding and having overall responsibility for planning this provision must be a party to decisions. In fact, that is the case. The key

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point about the local authority as the guardian of the interests of the local community having power to refer to the adjudicator, but not the Learning and Skills Council, is that in respect of post-16 provision a trust proposal could not also double as a proposal to open a sixth form or change the post-16 character of a school. I hope that that reply meets the point.

On who can refer trust proposals to the adjudicator, or, taking the amendments tabled by the noble Baroness, Lady Buscombe, whether there should be referrals to the adjudicator at all or whether local decision-making should not involve the right of a local authority to refer to the adjudicator, I believe that we have struck a fair balance. We want the local authority to have the right to be able to refer on the basis of standards at the school, not more general standards, or inadequate consultation. The local authority must judge for itself whether it believes standards are at risk by a trust proposal or that there has been inadequate consultation. Having done that, this is then a matter for the adjudicator to decide. We think that that is the right way to proceed.

However, on Amendments Nos. 114, 115 and 116, we do not think that it is right to have an open-ended right of appeal. The local authority can be trusted to make sensible judgments on behalf of the community to refer trust proposals to the adjudicator, which is the basis on which we should act in this regard. We think that we have struck a fair balance. We could have gone further and given wider rights of reference to the adjudicator, but we thought that the role of the local authority was most important. That would seek to take account of others who are making these decisions. Equally, on something as important as the acquisition of a trust, which could lead to the appointment by that trust of a majority of the governing body, if there are concerns by the local authority that this would have a prejudicial effect on standards or that there hasbeen inadequate consultation, it is right that this should be subject to some independent review. Local adjudicators, who are now skilled in taking decisions of this kind about school organisation in the best interests of education in that community, are the appropriate people to make these decisions.

Baroness Sharp of Guildford: I thank the Minister for his reassurances on this. I understand the distinction that he is making between expansion proposals and proposals for setting up a trust and a foundation. I will read carefully what he has said. I think that I understand the position, and I am grateful to him.

Baroness Buscombe: I almost echo the words of the noble Baroness, Lady Sharp, with regard to my Amendments Nos. 114 and 115. I see some value in what the Minister has explained about the difference between foundation and trust, although I remain a little concerned that there is an inconsistency. That said, I thank him for his full reply. I want to take this away, have some further thought on it and will read what the Minister has said in Hansard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 21, as amended, agreed to.

Clause 22 [Rights of interested bodies in relation to proposals under section 20]:

[Amendments Nos. 115 to 116B not moved.]

Clause 22 agreed to.

Clause 23 agreed to.

Clause 24 [Proposals for removal of foundations or reduction in foundation governors]:

Lord Adonis moved Amendment No. 117:

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