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While the spirit of these amendments is clearly correct and should be encouraged, as we want to see strong parental and community engagement in proposals for academies, I caution the Committee against seeking to put in primary legislation vague requirements which will open the floodgates to opponents to engage in litigation on the ground of ambiguous legal wording.

Lord Northbourne: My Lords, I should like to set down a marker. If academies are required to accept children with special educational needs, those who understand the needs of those children should be consulted to find out what the effect of the academy would be on their well-being.

Lord Mackay of Clashfern: My Lords, it seems to me that there is a good deal to be said for consultation in this area, in accordance with the spirit of what was said in relation to the big society, as the right reverend Prelate the Bishop of Liverpool has pointed out. I am sure that we very much support what the noble Lord, Lord Adonis, said about the desirability of reducing the impact of litigation in this area, as that could at best produce only bitterness. Although it might provide rewards for some, it is not a particularly attractive process. Perhaps the consultation should be the responsibility of the Secretary of State rather than of one of the parties given that consultation originated by the Secretary of State, on an application being made to him or her, would be more likely to be regarded as proper consultation than would consultation initiated by the party making the application. Open-mindedness is implicit in the notion of consultation and I am not certain that a party wanting to make an application would necessarily have sufficient detachment to make the consultation effective.

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

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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

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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.

7.45 pm

Baroness Perry of Southwark: I do not think that anyone who has spoken or, indeed, anyone in the House disagrees with the idea that consultation is a good thing and is probably right and proper. The only disagreement is on whether one needs to legislate for consultation or whether one trusts sensible and grown-up people to behave in a way which guarantees-or provides as near a guarantee as is possible-that their move towards academy status will be a success and will be accepted. As the noble Lord, Lord Adonis, has said, there are very few examples where consultation does not happen-not because it has been legislated for, but because grown-up people have behaved in a grown-up way.

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I wish that sometimes in this House we could avoid the temptation to think that every good thing has to be legislated for. Sometimes we should trust people to behave sensibly and in a way that guarantees that when an academy is set up it has the enjoyment and consent of local people.

Lord Phillips of Sudbury: I should say briefly that all the amendments we are discussing are relevant to maintained schools converting to academies. They do not address the issue of creating an entirely new school, when there will be no pupils, parents or staff. Yet the need for consultation when a brand new school is created is surely pre-eminently more obvious than for even a school which is converting. I merely make that point; maybe my noble friend will provide some reassurance on that issue.

Lord Hill of Oareford: My Lords, as has been the pattern today, we have had a good and lively debate, which has certainly given me food for thought as we go forward. Perhaps I may briefly restate the amendments.

Amendment 3A would change who the Secretary of State could enter into academy arrangements with from a person to an individual or organisation. This is an unnecessary amendment because in law, a "person" is taken to mean either an individual or an organisation.

Amendments 4A, 101 and 102 would require proper checks of any person who was party to academy arrangements and, with Amendment 104, require the governing body of a maintained school to consult certain persons listed in the amendments before applying to the Secretary of State for an academy order. These people would include pupils at school, parents, school staff, staff trade unions, relevant local authorities, other local schools who might be affected and any other person who it is appropriate to consult. It is important to be clear that current legislation does not address these issues. These would be additional legislative requirements that the noble Baroness is seeking to introduce, although I recognise the point made by the noble Baroness, Lady Morris, quite properly and fairly about the change in status; currently there would be an obligation to consult if the school was to close. The circumstances are different and she is right about that.

I will first respond to the broad thrust of what the noble Baroness, Lady Royall, asked-why the urgency? Why can we not take some time? That point was in some way echoed by my noble friend Lord Greaves. I know that I have made this point repeatedly, but part of the answer to the urgency question is that, five years ago, the Government of whom she was a member set out down this path. Five years later, we are still debating it and that represents another five years of children who have not been able to take advantage of some of these freedoms that I know her party, when in government, were keen to extend. In another part of the answer to the urgency question, I underline the point that we made in previous debates that our approach to this legislation is fundamentally permissive, rather than coercive. Simply by putting a flyer there and saying to schools, "Is anyone interested in this? Are these freedoms something of which you would like to avail yourselves?", more than 1,750 schools have said that they would be interested. Thinking about the

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point that my noble friend Lady Perry made, that tells us something quite powerful about trust, which one always has to balance against our natural instinct to try to make sure that nothing goes wrong. One needs to listen to those who are clearly keen to get on and feel that there is a need for urgency. My starting point in this is not so much the question of why we need to move so rapidly as of what is preventing us getting our skates on.

I turn to a specific point which my noble friend Lady Walmsley has already picked up on. It is already part of our process to carry out full due-diligence checks on anyone who is party to a funding agreement, and regulations also require CRB checking of all governors. I, like many Members of the Committee, I suspect, have been CRB-checked more times than I care to remember-although not because there was a particular problem, I should make clear.

I was struck by the point that the noble Lord, Lord Adonis, made about drawing a distinction between the spirit of consultation and making it a legislative requirement. He gave examples of the difficulty of getting a satisfactory definition in the Bill within which everyone could operate-and which did not have the problem alluded to by the noble Baroness, Lady Morris, of the old system of ballots, which caused acrimony-and which would not give people who, for particular reasons, might want to frustrate this policy the opportunity to do so. I think that there is broad acceptance on her side of the Committee that the policy is fundamentally good, and these are the detailed questions that we are working through. I was very persuaded by the noble Lord, Lord Adonis, concerning the dangers of being overly legalistic. However, I also accept the point made by him and many other noble Lords on all sides of the House about the spirit of consultation. It is something that clearly one must take seriously.

We certainly expect schools, in deciding whether to make an application to convert, to discuss their intention with students, their parents and the local community. A point that has been well made by a number of Members of the Committee is that that is what happens already, and it would not make sense for a school not to do so. The governing body of any maintained school that is considering converting does, and will, include parent governors, staff governors and local authority governors. These governors will all be part of the decision-making process. Currently, the employer of a school's staff would also need to conduct a TUPE consultation with all staff and the unions as part of the staff transfer process. On a small point of fact-I know that this point has been raised before-I say to my noble friend Lady Walmsley that there is not a minimum 10-week consultation period; the time is not specified in law but there would clearly have to be consultation with all staff and the unions as part of the process.

In response to a point about informal consultation that I think was made by the noble Baroness, Lady Howe-I hope I shall be forgiven if it was not her-I shall try to be brief as I know that supper beckons. The departmental website will make it absolutely clear that we expect teaching staff, other staff, parents,

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pupils and the local community to be consulted. The question with which we are grappling-the debate has grappled with it this evening-is how far this process needs to be formalised, with the risk that that might either slow it down or make the process acrimonious. Our view is that there are clear disadvantages-

Baroness Walmsley: Does my noble friend accept that if schools want to convert by September, that will give them quite a lot of time as long as they get on with it? However, if he does not want to put this into legislation, will he consider putting it in guidance and not just on the website?

Lord Hill of Oareford: I am grateful to my noble friend. The point about whether schools will be able to convert in time for September has certainly been raised, and there has been a suggestion that the timetable has been politically driven. As I said before, our approach has been to put out the idea and be permissive. Some schools may well convert in time for September, which we think is perfectly possible, as my noble friend says, but other schools will no doubt take longer, and that is also fine.

In response to my noble friend's more substantive point, which is where my argument was heading, having listened to this debate I recognise that we have to be as transparent as possible in this process. As I said, I recognise the points that have been made about the spirit of consultation, and I can say to the Committee that I am willing to take that thought back to the department and consider how best we can ensure that the conversion process carries the confidence of all interested parties-a point made forcefully this afternoon. On that point, I urge the noble Baroness to withdraw her amendment.

Baroness Royall of Blaisdon: My Lords, this has been an excellent debate and I am grateful for the Minister's response. It is not that I do not trust people; I fundamentally trust human beings-that is my position. However, I recognise that the need for consultation was not enshrined in the previous Act and that, to date, academies have undertaken consultations because they have believed it to be the proper thing to do, which it is. However, there have been about 200 academies to date and we are now talking about a further 200, another 200 and another 200. If free schools all become academies, that will be an awful lot of schools. We are talking about a fundamental change in our education system. It is not a question of a lack of trust; it is a question of ensuring that proper procedures are undertaken.

I shall certainly reflect on the debate. I certainly understand the fears expressed by my noble friend Lord Adonis, and I would be the last person to want to be overly legalistic. I shall also reflect on the suggestions put forward by the noble and learned Lord, Lord Mackay.

The noble Baroness, Lady Walmsley, suggested that consultation could be dealt with in guidance. That might well be an interesting way forward but, if that were the case-and, as I said, I want to reflect on it, as I shall certainly want to come back to this issue on Report-I would want to see some sort of draft guidance.

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I would want to ensure that the guidance came before, and was agreed by, Parliament. I believe that consultation goes hand in hand with confidence; it is a matter of dispelling doubts and suspicions.

This is a critical part of the Bill. I am glad that the Minister is going to reflect further, as I think we must all do, and I look forward to our debate on Report. I beg leave to withdraw the amendment.

Amendment 3A withdrawn.

House resumed. Committee to begin again not before 8.58 pm.

Social Security (Claims and Payments) Amendment (No. 2) Regulations 2010

Copy of the SI
Copy of the Report

Motion of Regret

7.58 pm

Moved By Lord Lucas

Lord Lucas: My Lords, I start by thanking my noble friend Lord Freud for turning up to respond to this Motion. The instrument that I am praying against is not of his genesis and if I get hot under the collar I hope he will accept that I am not aiming at him in any way.

The instrument first appeared before your Lordships' Merits of Statutory Instruments Committee with a very inadequate Explanatory Memorandum. When the committee challenged them we were given more data that not only amplified what had been there before but indeed said different things. The first thing I want to say is that I very much hope that my noble friend will see the importance of making sure that Explanatory Memoranda accurately and fully reflect the intentions and details of the instruments concerned.

Secondly, although this is not in my Motion, I wanted to take the opportunity to question my noble friend on whether he really thinks that the proposals in this instrument are an appropriate use of the department's time. It seems odd to be conducting research into what is effectively how to shift money from one government pocket into another. Here we are concerned with people on benefits. Even with the generosity of the past 13 years, benefits are still pretty marginal. If we consider the list of deductions that are generally allowed, such as mortgage payments, rent arrears, fuel and water charges, child support arrears, and so on, they are pretty important and essential to life. Yes, we allow fines to be deducted too, but that is when a court pronounces that there is a serious punishment involved. I do not think that debts to the Inland Revenue rank alongside that. Given that social security payments are basically set so that a person can meet life's essentials, how is someone supposed to

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find 15 per cent of their income spare to repay the Inland Revenue? They can end up only in a worse position by having to rely on the state to a greater extent. Hence my feeling that this is just shifting money from one pocket to another.

There are other problems with this. We are not looking at large debts, but what will be the cost of recovery of these debts? Are we not looking at a system that actually costs more in its administrative functions than the money that it will recover? Is that an appropriate use of time when it comes to poor people? What is a tax debt anyway? If one is moving in and out of employment, a tax debt varies with the month. You can start off appearing to owe the Inland Revenue a good deal of money because you have not paid. You are then unemployed for six months and your allowances accumulate and you end the tax year with the Inland Revenue owing you money. It is not at all clear whether we are talking about debts that are in some way established or whether they just appear to be debts at a particular moment but may well not be debts six months later. It is an odd thing to be spending time on. This is persecuting poor people when the department ought to be trying to extract money in ways that are more efficient and have less of an impact on the very poorest.

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