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Baroness Andrews: My Lords, with the leave of the house, I will address the specific impact of the amendment put down by the noble Baroness, which would prevent regulations from allowing proposals for a change in the category of school to be approved other than by the school organisation committee. I hope that I can persuade her about the virtues of what that would mean for schools. I will set out briefly the background to the provisions for schools changing categories.

The School Standards and Framework Act 1998 established the principle that provisions for schools changing categories should be set out mainly in regulations rather than guidance. The Act provides that the governing bodies of schools wishing to change category must publish proposals, but it does not prescribe the process. However, it is clear that Parliament took the view at the time that different provisions might be made in regulations for the treatment of proposals for different types of change. We think that it has proved to be an eminently sensible approach because it allows for the decision-making process to be proportionate to the type of change being proposed. I am advised that the regulations have not been changed.

Noble Lords will know that we have been consulting on proposals relating to foundation schools and the five-year strategy. There are two strands to those proposals. The first is that the governing bodies of community and voluntary controlled secondary schools should be able, following consultation, to publish proposals to change category to become foundation schools; and that they should be able to decide those proposals themselves, taking into account any representations received.

The second element of the proposals is that where a foundation school forms a partnership with a charitable foundation, the foundation should be able to appoint a majority of governors. We would not want to diminish the role, scope, effect or impact of the consultation process. We take it seriously. The noble Baroness asked why we had not published an analysis. The Government do not always do that, but we are giving the responses close consideration. We will respond shortly, and a summary of responses to the consultation process will be published. I hope that that is helpful.

Obviously, I cannot pre-empt the Government's formal response to consultation, which will be made shortly, but I will briefly reinforce the argument about why we think that we have arrived at the most appropriate way of dealing with the matter from the school's point of view. The first distinction in relation to the SOC in its traditional role is that a change to
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foundation status brings essentially internal changes. A school that changes category from community to foundation will not bring about any change in the pattern of provision of school places in an area or have a formal impact on other schools. The school would be the same size and cater for the same age-range, before and after the change; and the change would not in itself result in the school operating different admission arrangements. None of those changes would impact on other schools, pupils or parents. It is for that reason that we are not convinced, therefore, that it is necessary for the SOC to consider proposals for such a change. We do not believe that it is necessary, essentially, for the SOC to engage itself in matters that relate to the internal management of the school.

The second distinction is that the change of category does not result in a significant change in a school's governance. We have proposed that foundations should be allowed to appoint a majority of governors, as they do for voluntary-aided schools—there is no difference. Where schools do not have foundations—most foundation schools do not—no single body will elect or appoint the majority on the governing body. Under our proposals, it would be for each school's governing body to decide whether the school should acquire a foundation, and how many governors the foundation should be able to appoint in the future.

On the third point, the noble Baronesses, Lady Walmsley and Lady Sharp, are concerned about accountability. We believe in all sincerity that there is no less accountability in this situation.

In terms of the governing body, in the case of a voluntary school or a foundation school with a foundation, the foundation has no statutory responsibility for the general conduct of the school. The responsibility will rest with the governing body alone. The foundation's responsibilities are limited to appointing a specified number of governors and holding land on trust for the school.

In terms of the LEA itself, the foundations are required under the 2002 Act to have at least one governor appointed by the LEA. There will therefore be LEA representation on the governing body.

Governors appointed by the foundation of a voluntary or foundation school have specific responsibilities to secure that the school is conducted in accordance with any trust deed—indeed, if it has a religious character, to preserve and develop it. All governors of any category school, however, are collectively bound to act only in the interests of the school.

Secondly, in terms of inspection accountability, foundation schools are inspected by Ofsted in the same way as other maintained schools. Local authorities have the same powers to intervene under Sections 14 to 17 of the 1998 Act. Those include powers to appoint additional governors and to suspend the school's right to a delegated budget.
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Thirdly, regarding the representation of parents, the proportion of governors who are parents would remain the same if the change was made to foundation status. If that school did not acquire a foundation, a third of the governors would be elected parent governors. If the school acquired a foundation, the number of elected parent governors would be reduced, but a sufficient proportion of foundation governors would still have to be parents to ensure that, overall, parents still constituted one third of the total governing body. That is exactly the same situation as for voluntary aided bodies, which account—as I think the noble Baroness, Lady Walmsley, said—for a fifth of all secondary schools. They are no less accountable than any other type of maintained school, as I am sure the noble Baroness would agree. The different make-up of their governing body does not affect the extent to which governors are collectively answerable for the conduct of the school.

I therefore hope—in relation to what I have said about the pragmatic nature of the changes in relation to the representation of the LEA, the way the governors are organised and particularly the questions of accountability she has raised—that I have been able to persuade the noble Baroness that these changes do not make the schools less accountable to parents or the wider community. On the contrary, our proposals are aimed at giving governing bodies additional freedoms, so that they are better able to respond to local needs. I hope the noble Baroness will take some reassurance from that, and will consider withdrawing her amendment.

Baroness Walmsley: My Lords, I am grateful to the Minister for her detailed reply. I shall deal with her points in order.

The Minister mentioned that the regulation situation was put in place in 1998. At that stage, no one envisaged the wholesale dismantling of our school system that we see today. She talked about consultation, but how seriously do the Government take consultation if they are shortening the period for consultation on foundation status on the one hand and, on the other hand, acting before the consultation has been published, as the Minister has just confirmed? That is a blatant example of putting the cart before the horse.

The Minister says that foundation schools will have no effect on the provision of school places. However, they profoundly affect the governance of a school. The demand for change is not coming from the school; it is ideological. There is, as the Minister said, going to be one LEA governor, but one out of 12. What about the dental appointment? You only need that LEA governor to go to the dentist, for example, when there is a meeting, and you have no LEA representation at all. One out of 12 is really pathetic.

If the school has a foundation then parents are not elected, they are appointed. The Government are encouraging foundation schools to have a foundation. The main objective of this whole process is to get schools away from the LEA. I would argue with the statement that this is all pragmatic. It is not; it is ideological.
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Clearly, however, there is not going to be an ideological meeting of minds over this. For the moment, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Sharp of Guildford moved Amendment No. 87:

The Secretary of State shall within two years of the passing of this Act lay before both Houses of Parliament a report which contains a comparison and assessment of the statutory provisions in respect of the establishment, changes in terms of establishment and discontinuance of academies and maintained schools and, in the light of this report, the Secretary of State shall if necessary introduce legislation to amend these provisions in order that there may be equivalence in the statutory requirements in respect of the establishment, changes in the terms of establishment and discontinuance required of academies and maintained schools."

The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 105.

Both these amendments are about establishing a level playing field between academies and maintained schools. The purpose of Amendment No. 87 is to probe the differences in terms of establishment between academies and maintained schools. Essentially, when they are established, academies are guaranteed funding over the course of the next seven years, irrespective of whether they meet their targets in terms of pupil numbers and achievements. Given that many academies are set up to replace schools with a history of failure, it is not a foregone conclusion that they will succeed, especially in areas such as Hackney, where four academies have now been established in very close proximity to each other.

The Minister will know of the recent publicity given to a report on academies that the DfES itself has commissioned from PricewaterhouseCoopers, which showed very clearly that there was some querying of how successful academies would be. The question is, what happens if an academy fails? Should its funding be continued willy-nilly for the next seven years? Why should LEAs, which are statutorily required to fund academies' current costs by top-slicing their schools budgets, not be able to close down a failing academy as it would a failing school which came within its responsibilities? Indeed, were it a maintained school, it is just possible—although I have to say not very probable, since it has never been used—that the Secretary of State might step in with his powers under Clause 66 to close it down. Well, the academy gets off scot-free, at least for seven years.

This amendment therefore proposes that after two years, once this Bill has become an Act of Parliament and begun to have some effect, a review should take place on the relative rules relating to the establishment, alteration to that establishment or the discontinuance of maintained schools and academies. We are prepared to look at both. We are looking at the comparison between the two sorts of establishment. If, as we would expect, the report finds an inequality between the two, the amendment suggests that legislation be promoted which puts them on an equal footing.
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I quote from a conclusion of the PricewaterhouseCoopers report, about the relative success of academy-type schools:

In other words, it is possible that academies may fail, and do so within that seven year timeframe. Why should LEAs be left holding the baby, financing them in those circumstances? Is it not fair, if you are going to establish new schools, that you do so on equal terms?

Amendment No. 105 is slightly different. It is an amendment to the Schools Standards and Framework Act 1998. Its purpose is to strengthen the admissions code of practice. Again, it is trying to put the issue on a level playing field. Currently, the admissions code of practice puts a duty on relevant bodies, such as the admissions authorities—and do not forget that the foundation schools, academies and city technology colleges are their own admissions authorities—and LEAs, which are admissions authorities, and appeal panels to have regard to any relevant provisions in the code. The amendment puts a duty on the relevant bodies to act in accordance with any relevant provisions in the code. The amendment is a response to the recent High Court judgment on the status of the code in the case brought by the London Oratory School against the adjudicator. Essentially, the conclusion was that the London Oratory School could, if it wished, go on interviewing in relation to admissions to the school.

School admissions are at present set by the individual admissions authorities. With the proposed increase in the number of foundations schools and city academies, there is likely to be an increase in the number of new admissions authorities in England of something like 3,000. Alongside the expansion of the best and most popular schools—and the recent case of the London Oratory School highlighted this—it would be increasingly difficult for local authorities and admissions forums to ensure fair admissions policies that also supported wider school improvement.

A statutory code of practice on admissions would support local authorities in their local leadership role, enabling them to use admissions policies more effectively to ensure that all schools shared the same chance to improve, and not only the best ones. While we support greater independence for schools, the correct mechanism must be put in place to ensure that individual school policies work to the benefit of all children and not just a particular group of children. I beg to move.

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