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14 Sep 2011 : Column GC221

Grand Committee

Wednesday, 14 September 2011.

Arrangement of Business


3.45 pm

The Deputy Chairman of Committees (Baroness Fookes): My Lords, I remind the Grand Committee that if there is a Division in the House, this Committee must immediately adjourn and will resume after 10 minutes.

Education Bill

Bill Main Page
Copy of the Bill
Copy of the Bill

Committee (10th Day)

3.45 pm

Amendment 124B

Moved by Baroness Jones of Whitchurch

124B: After Clause 52, insert the following new Clause-

"School teachers' qualifications: definition of "school"

(1) EA 2002 is amended as follows.

(2) In section 133 (requirement to be qualified), in subsection (6) (schools to which this section applies), after paragraph (b) insert-

"(c) an Academy, including a free school,

(d) a city technology college, or

(e) a city college for the technology of the arts.""

Baroness Jones of Whitchurch: My Lords, this amendment would require teachers in all state schools to be qualified. Specifically, it will remove the ability for teachers in free schools not to be qualified. This country has great teachers. Under the previous Government, Ofsted said that we had the "best generation ever"-a proud achievement meaning the best quality teaching for our children. This Government talk about standards and the importance of teaching. The Secretary of State says that the importance of teaching cannot be overstated, while in the foreword to the schools White Paper, the Prime Minister and Deputy Prime Minister say that,

I agree with that but it is difficult to see how the Government's actions, which would allow teachers in free schools to be unqualified-unlike the teachers in any other state school-support these statements. I believe that a core purpose of education reform should be to drive improvements in standards and raise professionalism, but it is difficult to see how this move does either. Can the Minister explain why the Government think that by lessening teacher professionalism in certain schools, standards will increase? What evidence does he have to support this?

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We have already discussed in the Grand Committee the abolition of the General Teaching Council for England, a body that was set up to improve standards of teaching and the quality of learning. We have also raised concerns that the Government have done so without putting in place satisfactory arrangements on teacher registration or on maintaining standards of teacher professionalism. We have raised similar concerns about the abolition of the Training and Development Agency for Schools, which among other things had responsibility for the development and maintenance of the professional standards framework for teachers. This is beginning to create a disturbing picture, so does the noble Lord think that these moves, and the move to allow publicly funded teachers to be unqualified, will lead to an increase or a decrease in educational standards?

The model funding agreement for free schools simply indicates that teachers should be "suitably qualified", and while the model funding agreement for existing academies includes provision that teachers are qualified in line with the expectations of maintained schools, that is not established in statute. Our Amendment 124B will ensure that all schools, including academies and free schools, would be subject to the same legislation as other schools when it comes to qualified teachers. The Secretary of State has said about free schools:

"We want the dynamism that characterises the best independent schools to help drive up standards in the state sector ... In that spirit, we will not be setting requirements in relation to qualifications".-[Official Report, Commons, 15/11/10; col. 623.]

However, where independent schools are high performing what evidence does the Minister have that it is the lack of qualifications that drives up standards rather than the lower teacher-to-pupil ratio, the size of the school or other factors?

In every profession, it is a given that standards are increased by professional qualifications so why are the Government so keen to make an exception of education, and what sort of message does this send to the existing teaching profession about how its skills are valued by this Government? What next-unqualified doctors? If the Government release doctors from the bureaucracy of getting qualified, do we think that would drive up standards in the NHS? If accountants are given the dynamism that the Secretary of State thinks comes from a lack of qualifications, would standards rise in their sector? Would lawyers freed from the shackles of professional qualifications do a better job?

International evidence shows that the status, expertise and professionalism of teachers have an important impact on standards. The OECD report Viewing the United Kingdom School System through the Prism of Pisa states:

"Importantly, many of the high performing countries share a commitment to professionalised teaching, in ways that imply that teachers are on a par with other professions in terms of diagnosis, the application of evidence-based practices, and professional pride".

On a more populist level, those of us who watched "Jamie's Dream School" earlier this year will have seen the shocked realisation of some the participants-all of whom were experts in their own field-when they realised that teaching is a highly skilled profession.

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It is a mystery where the demand for this policy has come from. It is certainly not from parents. A ComRes poll in April this year found that an overwhelming 89 per cent of adults surveyed preferred their child to be taught by a university graduate who is a qualified teacher, 86 per cent believed that any school receiving public funding should employ only qualified teachers to teach pupils and 82 per cent disagreed with the coalition Government and said that they would not want their child to attend a free school that did not require its teachers to be fully qualified. Parents should be able to choose the type of school that is best for their child, and they should rightly demand high standards of teaching in every state school. They should be secure in the knowledge that all publicly funded schools will employ teachers with relevant training and qualifications.

Finally, I note that there is nothing in the coalition agreement on allowing unqualified teachers in our state-funded schools. It only states:

"We will support Teach First, create Teach Now to build on the Graduate Teacher Programme, and seek other ways to improve the quality of the teaching profession".

This amendment would ensure that free schools and academies are covered in legislation by the same requirements regarding teacher qualifications as other schools. It is simple and a clear guarantee for parents that whatever school they choose for their child, they will know that qualified teachers will be employed. I hope that noble Lords will feel able to support this position.

Lord Storey: My Lords, I have a great deal of sympathy with this amendment. My experience as a head teacher for 26 years is that one of the reasons that standards in schools have risen is because of the quality of teachers, the quality of entrants going to university or college and the quality of the qualifications they received. We have to think very carefully about where we are going on this. Are we going to have unqualified people who, for example, have no child protection training, no safeguarding training and no special education training? If we do, we do a disservice to our education sector as a whole.

That is not to say that there are not people in schools who are not fully qualified as teachers. For example, currently teaching assistants with NVQ level 3 can teach, provided that the work is prepared by a teacher. Teaching assistants with a higher level qualification can teach and prepare the work, but there is a teacher at hand. The notion that in free schools you have people with no qualifications teaching children is a retrograde step. It is almost Dickensian. It goes back to the pupil teacher. I hope that the Government will look at this very carefully. I am not opposed to the notion of free schools. In fact, the first free school can be traced back to the 1960s in my home town of Liverpool, but it was opened with qualified teachers.

The other day, I was listening to a programme on Radio 5 about a school where all the people providing the teaching-I cannot use the term "teachers" because they are not qualified-are going to have a military background. I have nothing against that, provided

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they have qualifications to go with that role. I hope that we will look at this closely and return with some proposals that we can all accept.

Lord Peston: My Lords, I regard teaching is a skilled profession and one that demands all sorts of skills, but I am aware that, among the general public, many people believe that anyone can teach and that there is nothing to it at all. They are just plain wrong. Teaching is not only a skilled profession, but it is an incredibly difficult one. I shall enlarge on that in a moment.

Perhaps I may go into my own anecdotage, as I always do when addressing your Lordships. Many years ago, when I was a lecturer at the LSE, the professors decided that they ought to get some advice from the Institute of Education about teaching. I was told by a most senior professor, the great Lord Robbins, that I had been selected-it turned out that I was almost the only one who had agreed-as one of those to be examined by two people from the Institute of Education. None of the professors volunteered to be examined by them. They heard me lecture a couple of times and then they came to see me. They said, "Do you think you are a good teacher?". I said, "I am a very good teacher, I can assure you of that". Then they said, "Do you think it would be advantageous if the students could actually hear what you said?". I said, "What?". They said, "Well, you constantly march round, turn your back to them and for most of the time they cannot hear what you say, but they are too well mannered to tell you". Then they said, "Do you think it would be useful if you wrote legibly on the blackboard so that they can see what you write?". Again, I was taken aback.

They went through it all and I realised that I had been totally deluded in my view. In those days, you just got a first-class honours degree at the LSE and you were appointed as a junior lecturer, end of story, and you were told to go and teach. In principle, I was addressing willing learners. One thing we have to bear in mind is that the lives of many teachers are difficult because quite a large number of the people whom they are teaching do not want to learn and one of their skills has to be to persuade people that it is worth learning and that education is a useful thing. We have discussed before in Grand Committee how you persuade students when their own parents, particularly parents with girls, tell them that education is a complete waste of time.

Therefore, it seems to me that we must not go down the line of pretending that anyone can teach. I do not say that everyone who has a teaching certificate will turn out to be a good teacher, but that seems to be at least a sine qua non to start with. My noble friend mentioned whether we are to go down the next stage which is having unqualified doctors. I remember, some time ago, talking to a computer expert, saying, "Do we really need expensive doctors because as far as I can see you could write a program which would involve structured questions and answers and you could give it to me and I would follow the structured questions and answers and I would diagnose a condition and the program would also tell me what to prescribe?". I spoke to one or two medics and they said, "Don't you know

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that doctors do other things besides simply looking at a few symptoms and then prescribe?". They were entirely right; their contribution is a human contribution and that applies to social workers and all sorts of areas where people need to be skilled and qualified. We do not need Philistines outside telling us that anyone can do this sort of thing.

In following what has been said already, it overwhelmingly seems to me that we must not go down the path of diluting the educational training of those are to be our education trainers. None the less, having said that, we must place all this-the point has already been made-within the context in which people teach. As I have already said, there is no big deal when teaching willing learners. Equally, teaching becomes a good deal easier when classes are small. I do not see this Government, with their ridiculous economic policies, suddenly increasing the amount of expenditure on education so that all schools could have the same class sizes as private, independent schools. Our teachers have to cope in difficult circumstances. Above all, the job of your Lordships is to be supportive and not to undermine them in any way whatever.

4 pm

The Lord Bishop of Hereford: My Lords, surely it is the case that everyone here would be totally committed to having the best possible teaching in every institution. However, in the light of the comments that have been made, I shall make three points. First, reference was rightly made to child protection. As we well know, a lot of teachers were qualified a long time prior to the present requirements and training. They did not receive that training when they first qualified after doing their diplomas in education, certificates, BEd or whatever. That seems to me to be a crucial point.

Secondly, while we want these things frontloaded as much as possible, they should not be just frontloaded. It is not just a matter of training before a person teaches. As we all know, and to which we are all committed, there is very much the ongoing need for training. Perhaps that needs to be given a slightly greater weighting than, perhaps I might say, has happened in the comments that have been made.

Thirdly, I would observe that, were a free school rash enough to want to have teachers who were not up to the job, that would surely be a recipe for disaster and failure. They would have no pupils. They certainly would not pass the inspections. Is this not an area where there needs to be some recognition that anyone involved in education will have the best for their pupils in mind and their co-operation, and would therefore want the best possible teachers? How far is it right for legislation to touch that? How far is it right to have trust in the governors and the trustees of the schools? Certainly, when they advertise for posts, they will want skilled people and the best. Surely they will provide training, if it is lacking, in their own context. As I have heard, and I have no doubt other noble Lords have as well, those involved in free schools are already speaking-if they are prepared to consider people without teaching qualifications-about making sure that they provide whatever teaching experience and extra training that people need.

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Finally, to what extent could we and should we rightly trust the schools themselves and to what extent is this a matter for legislation?

Baroness Hughes of Stretford: Having been prompted by the noble Lord, Lord Storey, I should like to make a brief intervention, which I hope the Minister will address in his summing up. If he does not, we can come back to it. It seems to me that our view on this amendment may depend on what we define to be a "teacher". I do not know if there is any definition in law as to what a teacher is. Certainly, for clarification, I do not think that we are saying, any more than the noble Lord, Lord Storey, is saying, that everyone who stands in front of a class and delivers teaching should have a professional teaching qualification.

However, the spirit of the amendment is that it is very important that every child and every class in a school, and every subject area in a secondary school, should have a qualified teacher with oversight of the progression of each pupil and the delivery of the materials in relation to the subject being taught. That is the key issue. Certainly, the previous Government provided for considerable diversification of people in the classroom teaching and talking to pupils-for example, teaching assistants and learning mentors. There are many potential uses of people with great expertise in their field, but who may not be qualified teachers, to come in and give their expertise and enthusiasm to pupils. I believe fundamentally that the progression of each pupil should be under the oversight of someone with a teaching qualification and, if appropriate, in the subject area. Seeing the preparation that my son, who is a primary school teacher, carries out and the expertise gained from his basic training that he brings to bear on both those issues-the progression of each child and the way in which subject matter is delivered-has further convinced me that this provision is right. That is not to say that people with a basic teaching qualification should not also undertake continuing professional development. Of course they should and all qualified teachers are required to do so. However, there is added value to be gained from the professional training which people without that training cannot bring to those two tasks. I would be grateful if the Minister would clarify the Government's position on that.

The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, I agree with what the noble Baroness, Lady Jones of Whitchurch, and my noble friend Lord Storey said about the importance of a high-quality professional teaching workforce. As the noble Baroness said, in some of our earlier debates in Committee we have talked about some of the Government's plans for improving teacher quality such as raising the bar for entrants to ITT, strengthening performance management arrangements, our proposals for teaching schools and the expansion of Teach First, which the previous Government introduced and to which I shall come back in a moment.

I am grateful to the right reverend Prelate for mentioning continuing professional training. I agree with him and the noble Baroness, Lady Hughes of Stretford, about the importance of that. We have also

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asked the Coates review to revise and improve the standards that underpin QTS, and we have announced that we will adopt the clearer and more focused standards recommended by the review. Therefore, we are not talking about some wholesale move away from a commitment to the highest possible standards. As the noble Baroness, Lady Jones, said, we require academies to employ teachers with QTS through their funding agreements. The decision not to require QTS for all staff in free schools is simply intended to allow the possibility of greater innovation at the edges of the maintained sector. We have done this because we are keen to give free schools the ability to recruit experienced teachers who might have a background in FE, the higher education sectors, the independent sector or in other walks of life, who can bring their wider experience to bear in the classroom. It may be a way of getting-I have seen this in a school where I was a governor-a brilliant mathematician with a brilliant degree into teaching more speedily when there is a desperate need. It may be a way-this point was raised by my noble friend Lord Storey-of getting people from the Armed Forces, who might be able to engage particularly well with teenage boys. There are practical cases at the margins where this extra flexibility might help.

As the noble Baroness, Lady Jones, will recall, during the passage of the Academies Act we made commitments to ensure that additional safeguards are in place for vulnerable groups regardless of the type of school they attend. The free school funding agreement requires free schools to appoint a special educational needs co-ordinator and a designated teacher with responsibility for children in care, who hold qualified teacher status.

My next point links with the more general point made by the right reverend Prelate. Free school applications have to undergo a rigorous assessment process and have to demonstrate how they intend to deliver the highest quality of teaching and learning. However, as he argued, more generally they will be directly accountable to their parent and pupil bodies for the quality of education provided. Clearly, they will want to provide the highest quality education both in order to be approved and to continue to succeed. Like other academies and state-funded schools, they will be required to collect performance data and publish their results, and they will be inspected by Ofsted under the same framework that applies to all publicly funded schools, including on safeguarding. As free schools are intended to respond to parental demand for change in local education provision, it will be incumbent on free school academy trusts to ensure that their teaching staff are properly equipped to deliver their particular educational vision.

The core of the Government's argument is that all Governments seek to innovate. The previous Government took the decision to set up Teach First, which is an innovation I applaud; it was intended to bring about more flexible entry into the profession. I am sure that at the time there were some people who argued that this was a dangerous innovation, and I am glad to say that the previous Government persevered with it. We see this as being no different. It is a modest innovation, it is a permissive measure, and it is subject to the strict

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accountability measures that I have set out. I therefore ask the noble Baroness, Lady Jones, to withdraw her amendment.

Baroness Morris of Yardley: My Lords, with respect, I am not convinced by the Minister's arguments. I agree with people who have said that there is room for people without qualified teacher status in the classroom. They can bring a lot to the school and they have a set of experiences and often a set of qualifications that are not QTS, but which lend themselves to effective and imaginative teaching. I am pretty sure that that provision is in the 2002 Act, but I could be wrong. So we have that flexibility.

This measure causes me some difficulty, and that is why I wanted to wait until the Minister had spoken. Given that that exists already, and that probably everybody here could cite examples of people without QTS who are effectively teaching in schools-we have had a lot of examples already-what is going to change? This is primary legislation we are talking about. It is not sufficient to say that this measure allows something at the edges, a fraying of the boundaries, a bit of give and take. With respect, that is not good enough for primary legislation. It is about laying down what is allowed and what is not allowed.

Secondly, if this really is not much-if it is just a bit more blurring of the edges, on top of the blurring of the edges that was set up in 2002-why free schools? Is the Minister saying that these people have nothing to offer to academies, have nothing to offer to maintained schools? Let us just think about it. We could have an example-let me be kind-of a brilliant person with suitable non-teaching qualifications who wants to and is willing to teach this nation's children. The only place they could do that is a free school. Why should the Government stop children in 99.9 per cent of the system being able to benefit from that teacher's experience?

I think the Minister is caught between two extremes. Either it is nothing, so put it everywhere-just say. One way might be to produce an edict saying, "Remember that there are people other than those with QTS who can work alongside those with QTS and good leaders in our schools, and we welcome you and please populate our schools". Or it really is a shift in the law that is going to draw the boundary in a different place in terms of the qualifications that teachers need. If it is the latter, with respect again, we need more than we have had so far about where those boundaries will be drawn. Saying that it is a bit of fraying it at the edges, a bit of give and take is not really good enough for primary legislation.

Baroness Benjamin: My Lords, at a seminar in Birmingham recently, many parents from the black community were in favour of an alternative system of education, because they felt that schools were failing their children. They favoured free schools because, as I said, they felt that the present system was failing their children. They wanted education to strengthen their children's identity, and found that sometimes that comes from individuals who can assist the teachers in the classroom by giving them support. So unless the

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teaching curriculum changes and reflects the needs of these children, we might need to have unqualified teachers in the classroom.

I know of one particular unqualified teacher who already helps to teach in the classroom. She says that she has made a great difference to the children's lives, giving them confidence and self-esteem, especially young black Caribbean boys. She says that she has had all the checks and has had everything done in terms of training and child protection. So in some cases like these we need to consider having unqualified teachers in the free schools, because there are lots of black communities out there begging for this to happen, for we feel that we are failing our children.

Baroness Jones of Whitchurch: I am interested in the noble Lord's response because, like my noble friend Lady Morris, I felt that he was almost trying to have it both ways. To be honest, I do not think he addressed a number of the key points I originally raised because the quote I gave from Michael Gove, the Secretary of State, and the signals he has sent out are about more than just fraying the edges. This is not about doing things on the margins. The signal the Secretary of State has sent out is that he thinks that there is a model in the independent sector that we should embrace wholeheartedly in the maintained sector because there are all sorts of lessons we should learn.

The Deputy Chairman of Committees: My Lords, we have to adjourn immediately. The Committee will resume in 10 minutes.

4.16 pm

Sitting suspended for a Division in the House.

4.25 pm

The Deputy Chairman of Committees (Lord Skelmersdale): My Lords, I understand that the Grand Committee was debating Amendment 124B and that the noble Baroness, Lady Jones of Whitchurch, was in full flow when she was interrupted. May she continue.

Baroness Jones of Whitchurch: Thank you. I will recap my first point. I thank all noble Lords who contributed to the debate and would emphasise that the Minister cannot have it both ways. He cannot say that there is a grand new model out there based on the independent sector that we are going to embrace, but on the other hand say that this is something that will happen only on the margins on a few occasions. The problem with primary legislation is that it enables far more than just a few individuals around the edges: it enables a whole coach and horses to be pushed through if you set the ball rolling. I realise that I have just used a number of clich├ęs one after the other. I apologise for that, but I am sure that noble Lords got the gist of what I meant.

My second point is: are we going to tell parents who opt to send their children to a free school that this is part of an experiment, of which we do not know the outcome, and that it is not in any way evidence-based? Another thing that the noble Lord did not give me was

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any evidence as to why this could be justified. Will we admit to parents that we do not know the impact of letting untrained teachers loose on their children, but say that it will be a very useful experiment and that, at the end of their child's education, which may have been the worse for it, we will assess the experiment and decide whether to carry on with it? Parents should be told if that is the case, rather than let them assume, as most parents would, that if their child goes to any form of maintained school they would be in the capable hands of a qualified teacher.

My third point is that the noble Lord talked about there already being protections in the legislation for vulnerable pupils. One issue that we have explored in debates on previous issues is that often vulnerable children, children with special educational needs and those with behavioural problems go undetected. A qualified teacher has the training and experience to be able, as best they can, to identify the children whose special needs might otherwise not be identified and properly addressed. It is not good enough to say that vulnerable children are protected anyway, because it is difficult to quantify how they are categorised.

Finally, the noble Lord did not address the crucial issue of the morale of teaching staff. We are saying to them: "Of course we value you and of course you are important members of society, but people who have not gone through the training and qualification process that you have will come and work alongside you, will be paid the same and will have the same status". That sends a very poor signal to teachers who are feeling very unloved at the moment. It would be very simple for the Government to send a signal that they recognise their professionalism, qualifications and rigour and do not feel that the sector's professionalism should be watered down. I am not convinced by what the noble Lord says, so we will return to the issue on Report. I beg leave to withdraw the amendment.

Amendment 124B withdrawn.

4.30 pm

Clause 53 : Consequential amendments: 16 to 19 Academies and alternative provision Academies

Amendment 124C not moved.

Clause 53 agreed.

Amendment 124D not moved.

Schedule 13 : 16 to 19 Academies and alternative provision Academies: consequential amendments

Amendments 124E to 124P

Moved by Lord Hill of Oareford

124E: Schedule 13, page 95, line 14, at end insert-

" In section 10A (charges at boarding Academies) (inserted by section 59), in subsection (1)(a), for "an Academy" substitute "an Academy school or an alternative provision Academy"."

124F: Schedule 13, page 95, line 15, after "land)" insert "(substituted by Schedule 14)"

124G: Schedule 13, page 95, leave out lines 16 to 35 and insert-

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"( ) In paragraph 10 (power of Secretary of State to make direction where Academy order made)-

(a) in sub-paragraph (1)(b), for "Academy" substitute "Academy school";

(b) in sub-paragraph (3)(c), for "Academy" substitute "Academy school".

( ) In paragraph 13 (transfer of land and other property on dissolution of governing body), in sub-paragraph (3)(b), for "Academy" substitute "Academy school"."

124H: Schedule 13, page 95, line 36, at end insert-

" (1) The Children Act 1989 is amended as follows.

(2) In section 62 (voluntary organisations providing accommodation: duties of local authorities), in subsection (10), after "1992," insert "a 16 to 19 Academy".

(3) In section 80 (inspection of children's homes etc by persons authorised by Secretary of State)-

(a) in subsection (5), after paragraph (dc) insert-

"(dd) proprietor of a 16 to 19 Academy;";

(b) in subsection (13), in the definition of "college", after "1992" insert "or a 16 to 19 Academy";

(c) in subsection (13), at the end insert-

""proprietor" has the same meaning as in the Education Act 1996."

(4) In section 87 (welfare of children in boarding schools and colleges)-

(a) in subsection (10), in the definition of "college", after "1992 Act" insert "or a 16 to 19 Academy";

(b) in subsection (11), after paragraph (c) insert-

"(d) in relation to a 16 to 19 Academy, the proprietor of the Academy."

In Schedule 4A to the Water Industry Act 1991 (premises that are not to be disconnected for non-payment of charges), after paragraph 10 insert-

"10A A 16 to 19 Academy."

(1) FHEA 1992 is amended as follows.

(2) In section 85A (nuisance or disturbance on educational premises)-

(a) in subsection (2), omit the "and" after paragraph (a) and after paragraph (b) insert ", and

(c) any 16 to 19 Academy.";

(b) in subsection (4), omit the "and" after paragraph (a) and after paragraph (b) insert ", and

(c) in relation to premises of a 16 to 19 Academy, the proprietor.";

(c) in subsection (6), omit the "and" after paragraph (a) and after paragraph (b) insert ", and

(c) in relation to an offence committed on premises of a 16 to 19 Academy, a person whom the proprietor has authorised to bring such proceedings."

(3) In section 85AA (power of members of staff to search students for prohibited items: England)-

(a) in subsection (1), after "England" insert ", or a 16 to 19 Academy,";

(b) in subsection (6), in the definition of "member of staff", after "further education sector" insert "or a 16 to 19 Academy".

(4) In section 85AB (power of search under section 85AA: supplementary), in subsection (3), after "England" insert ", or a principal of a 16 to 19 Academy,".

(5) In section 85C (power of members of staff to use force)-

(a) in subsection (1), after "further education sector" insert "or is a 16 to 19 Academy";

(b) in subsection (5), after "further education sector" insert "or a 16 to 19 Academy"."

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124J: Schedule 13, page 95, line 40, leave out "and (1B)" and insert "to (1C)"

124K: Schedule 13, page 95, line 42, at end insert-

"(1C) An alternative provision Academy is a school.""

124L: Schedule 13, page 95, line 42, at end insert-

"( ) In section 11 (Secretary of State's duty in the case of primary, secondary and further education)-

(a) in subsection (1)(a), omit the "or" after sub-paragraph (i) and after sub-paragraph (ii) insert "or

(iii) in 16 to 19 Academies,";

(b) in subsection (1)(b), for "or institutions within the further education sector" substitute ", institutions within the further education sector or 16 to 19 Academies";

(c) in subsection (2), for "and institutions within the further education sector" substitute ", institutions within the further education sector and 16 to 19 Academies".

( ) In section 329A (review or assessment of educational needs at request of responsible body), in subsection (12), after paragraph (d) insert-

"(da) an alternative provision Academy that is not an independent school,".

( ) In section 332B (special educational provision: resolution of disputes), in subsection (8)(c), for "or an Academy" substitute ", an Academy school or an alternative provision Academy".

( ) In section 337 (special schools), in paragraph (b), for "Academy" substitute "Academy school".

( ) In section 444 (offence: failure to secure regular attendance at school of registered pupil), in subsection (7A)(a), for sub-paragraph (iii) substitute-

"(iii) an Academy school,

(iiia) an alternative provision Academy,".

( ) In section 444ZA (application of section 444 to alternative education provision), in subsection (8)-

(a) in paragraph (a), for sub-paragraph (iii) substitute-

"(iii) an Academy school,

(iiia) an alternative provision Academy,";

(b) in paragraph (b), after "(iii)," insert "(iiia),".

( ) In section 444B (penalty notices: supplemental), in subsection (4), in the definition of "relevant school", for paragraph (c) substitute-

"(c) an Academy school,

(ca) an alternative provision Academy,".

( ) In section 508A (local authorities in England: duty to promote sustainable modes of travel)-

(a) in subsection (5)(b), after "further education sector" insert ", or 16 to 19 Academies,";

(b) in subsection (6)(b), after "further education sector" insert ", or 16 to 19 Academies,".

( ) In section 508C (local authorities in England: travel arrangements etc for children other than eligible children), in subsection (6)(b), after "further education sector" insert ", or 16 to 19 Academy,".

( ) In section 508G (local authorities in England: transport policy statements for young adults subject to learning difficulty assessment), in subsection (1), after paragraph (b) insert-

"(ba) proprietors of 16 to 19 Academies in the authority's area,".

( ) In section 509AA (local authorities in England: provision of transport etc for persons of sixth form age)-

(a) in subsection (2), omit the "or" at the end of paragraph (c) and after that paragraph insert-

"(ca) at any 16 to 19 Academy, or";

(b) in subsection (2)(d), for "or (c)" substitute ", (c) or (ca)".

( ) In section 510 (provision of clothing), in subsection (4)(b), after "further education sector" insert "or a 16 to 19 Academy".

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( ) In section 537 (power of Secretary of State to require information from governing bodies etc), in subsection (1)(b), after "every" insert "(i)" and at the end insert "or

(ii) alternative provision Academy which is not an independent school,".

( ) In section 557 (adoption of statutory trusts), in subsection (10), in the definition of "relevant school", for "Academy," substitute "Academy school, alternative provision Academy,"."

124M: Schedule 13, page 96, line 8, at end insert-

"( ) in the definition of "proprietor"-

(i) after "a school" insert "or a 16 to 19 Academy";

(ii) after "the school" insert "or Academy"."

124N: Schedule 13, page 96, line 18, at end insert-

"( ) In paragraph 15(2) of Schedule 35B (travel arrangements for eligible children: meaning of "qualifying school"), in paragraph (f), for "or an Academy" substitute ", an Academy school or an alternative provision Academy"."

124P: Schedule 13, page 96, line 18, at end insert-

" (1) SSFA 1998 is amended as follows.

(2) In section 77 (control of disposals or changes in use of school playing fields) (as amended by Schedule 14)-

(a) in subsection (2B)(c)(ii), for "of Academy" substitute "of Academy school";

(b) in subsection (3), for "Academy" (in both places) substitute "Academy school";

(c) in subsection (4B), for "Academy" substitute "Academy school".

(3) In section 88 (admission authorities and admission arrangements), in subsection (1)(c) (inserted by section 62), for "Academy" (in both places) substitute "Academy school".

(4) In section 88H (reference of objections to adjudicator) (as amended by section 62)-

(a) in subsection (1A), for "an Academy" (in both places) substitute "an Academy school";

(b) in subsection (6)(b), for "Academy" substitute "Academy school".

(5) In section 88I (other functions of adjudicator relating to admission arrangements), in subsection (1)(b) (inserted by section 62), for "Academy" substitute "Academy school".

(6) In section 88K (sections 88H and 88I: supplementary) (as amended by section 62)-

(a) in subsection (4)(a), for "Academy" substitute "Academy school";

(b) in subsection (5)(b), for "an Academy" substitute "an Academy school".

(7) In section 88P (reports by local authorities), in subsection (3)(b), for "Academy" substitute "Academy school".

(8) In section 88Q (reports under section 88P: provision of information), in subsection (2)(d)(i), for "Academy" substitute "Academy school".

(9) In section 110 (home-school agreements), in subsection (1)(b), for "Academy" substitute "Academy school".

In section 24 of the Anti-social Behaviour Act 2003 (sections 19 to 22A and 24: interpretation)-

(a) in the definition of "governing body", for "Academy" substitute "Academy school, alternative provision Academy";

(b) in the definition of "relevant school", for paragraph (e) substitute-

"(e) an Academy school,

(ea) an alternative provision Academy,".

In section 14 of the International Development Act 2002 (functions of the Commonwealth Scholarship Commission etc), in subsection (1)(b)(i), after "higher education sector" insert ", at 16 to 19 Academies".

(1) EA 2002 is amended as follows.

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(2) In section 135A (requirement to serve induction period: teachers in England) (inserted by section 9)-

(a) in subsection (1)(d), after "prescribed description)" insert "or a 16 to 19 Academy";

(b) in subsection (2)(k), for "or to institutions within the further education sector" substitute "institutions within the further education sector or 16 to 19 Academies";

(c) in subsection (5), after "further education sector" insert "or a 16 to 19 Academy".

(3) In section 141A (teacher misconduct: teachers to whom sections 141B to 141E apply) (inserted by section 8), in subsection (1), after paragraph (b) insert-

"(ba) a 16 to 19 Academy,".

(4) In section 141D (supply of information following dismissal, resignation etc) (inserted by section 8), in subsection (4), in paragraph (c) of the definition of "relevant employer", after "school" insert "or 16 to 19 Academy".

(5) In section 203 (further education institutions: hazardous material, etc)-

(a) after subsection (1) insert-

"(1A) The Secretary of State may by regulations require the proprietor of a 16 to 19 Academy to prevent the use in the Academy of specified equipment or specified materials without the approval of the Secretary of State.";

(b) in subsection (5), at the end insert "and "proprietor" has the same meaning as in the Education Act 1996".

In section 71 of the Income Tax (Trading and Other Income) Act 2005 (educational establishments for the purposes of section 70), in subsection (1), omit the "or" after paragraph (c) and after paragraph (d) insert ", or

(e) a 16 to 19 Academy."

(1) EA 2005 is amended as follows.

(2) In section 5 (duty to inspect certain schools at prescribed intervals), in subsection (2), for paragraph (d) substitute-

"(d) Academy schools,

(da) alternative provision Academies,".

(3) In section 113 (information about the school workforce: introductory), in subsection (2)(c), after "institution" insert "or a 16 to 19 Academy".

(1) EIA 2006 is amended as follows.

(2) In section 7 (invitation for proposals for establishment of new schools), in subsection (2)(b), for "Academy" substitute "Academy school".

(3) In section 100 (duty of governing body or proprietor where pupil excluded for fixed period), in subsection (5), in the definition of "governing body", for "Academy," substitute "Academy school, an alternative provision Academy,".

(4) In section 104 (notice to parent relating to excluded pupil), in subsection (8), in paragraph (c) of the definition of "the appropriate authority", for "Academy," substitute "Academy school, an alternative provision Academy,".

(5) In section 111 (meaning of "maintained school" and "relevant school" in Chapter 2 of Part 7), in the definition of "relevant school", for paragraph (b) substitute-

"(b) an Academy school,

(ba) an alternative provision Academy,".

(6) In section 123 (inspections: education and training to which Chapter applies), in subsection (1) after paragraph (b) insert-

"(ba) education provided in 16 to 19 Academies;".

(7) In section 125 (inspection of further education institutions), in subsection (1) (amended by section 41), after "sector" insert ", and all 16 to 19 Academies,".

14 Sep 2011 : Column GC235

(8) In Schedule 2 (consideration, approval and implementation of proposals for establishment or discontinuance of schools in England), in paragraph 3A(a) (inserted by Schedule 11), for "an Academy" substitute "an Academy school".

(1) The Safeguarding Vulnerable Groups Act 2006 is amended as follows.

(2) In section 21 (controlled activity relating to children), in subsection (4), after "Education Act 2002)" insert "or a 16 to 19 Academy".

(3) In section 59 (meaning of "vulnerable adults"), in subsection (3), after paragraph (d) insert-

"(e) a 16 to 19 Academy which provides accommodation for children."

In section 71 of the Corporation Tax Act 2009 (educational establishments for the purposes of section 70), in subsection (1), omit the "or" after paragraph (c) and after paragraph (d) insert ", or

(e) a 16 to 19 Academy."

In section 23 of ASCLA 2009 (duty to prepare and submit draft specification of apprenticeship standards: England), in subsection (2)(b), omit the "and" after sub-paragraph (ii), and after that sub-paragraph insert-

"(iia) 16 to 19 Academies, and".

(1) The Equality Act 2010 is amended as follows.

(2) In section 91 (students: admission and treatment, etc)-

(a) in subsection (10), after paragraph (c) insert-

"(d) a 16 to 19 Academy.";

(b) in subsection (12), after paragraph (a) insert-

"(aa) in the case of an institution within subsection (10)(d), the proprietor (within the meaning of the Education Act 1996);".

(3) In Schedule 10 (accessibility for disabled pupils), in paragraph 5(3), for paragraph (b) substitute-

"(b) Academy schools;

(c) alternative provision Academies."

(4) In Schedule 17 (disabled pupils: enforcement), in paragraph 13(5)(b), for "Academy" substitute "Academy school or an alternative provision Academy"."

Amendments 124E to 124P agreed.

Schedule 13, as amended, agreed.

Amendment 125 not moved.

Clause 54 : Academy orders: involvement of religious bodies etc

Amendment 126

Moved by Baroness Murphy

126:, page 44, leave out lines 24 and 25

Baroness Murphy: I shall move Amendment 126 in the name of the noble Baroness, Lady Massey, myself and the noble Baroness, Lady Flather. I should apologise to the Committee for not participating in debates because I was abroad at the end of last term, so this is my last appearance, as it were, before the windup.

I return to the issue of faith schools. The noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Avebury, have an important group of amendments that we shall come to later in relation to

14 Sep 2011 : Column GC236

the employment of teachers in faith schools, but this little one has been taken out and put on its own, which is the right thing to do.

I would like to say a little about where I stand on faith schools. I shall not launch into a Second Reading speech on the divisiveness of faith schools because it is important that we offer some choice and that the wishes of parents can be best articulated in those schools which have a faith-based ethos and come within the ambit of the general system of inspection and inclusion, which takes place under the national curriculum, and so on. I also declare that I understand completely the vital and proud role that the Church of England voluntary-aided and voluntary-controlled schools have played right from the early 19th century. They have been socially inclusive and have integrated with the local community. They have also been very broad about their employment policies and so on. I have enormous admiration for some of these schools, but I am concerned, as many people are, about the rise of some of the rather more eccentric-based faith schools and about this small issue which we have tabled here.

In Part 6, this is an amendment to Clause 54 to reverse the increased role for religious bodies in the academy conversion process. The Bill introduces a new requirement for the Government to consult with the appropriate religious body when converting a maintained school with a religious character into an academy, despite an existing provision to ensure that trustees and others in charge of the management of the school will be consulted. This clause serves exclusively, it seems to me, to hand further control of education to religious authorities and stands in stark comparison to the lack of provision to consult with the wider community when transforming a community school into an academy or opening a free school or academy. This amendment simply removes that new requirement. I beg to move.

The Lord Bishop of Hereford: My Lords, I am grateful to the noble Baroness for her generous comments about the inclusive nature and history of our Church of England schools, and for affirming the importance of our continuing to offer choice. While I have some sympathy with what she is saying with regard to some of the risks that might be involved with some of the newer faith schools that might be planned, the difficulty that her amendment presents for the Church of England is that it would take out the requirement for consultation with our diocesan boards of education. They may or may not be the trustees but they are nevertheless the religious authority for our Church of England schools. In trying to address the issue that the noble Baroness has raised, it is of the utmost importance that we do not sideline the Church of England boards of education. They play a role across all the dioceses.

In my own diocese of Hereford, which covers Herefordshire and south Shropshire, we have 84 church schools. The boards of education are involved in appointing the head teachers, supporting the schools and in policy-making in conjunction with the schools, trustees and governors. They have a key role as far as the local authorities are concerned in that they can relate to the diocesan boards of education. That does not mean that they do not relate to individual schools

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but that, corporately, they can relate to the boards as a whole. That is a real plus and a virtue. Therefore, while I am sympathetic to the issue that the noble Baroness is trying to address with this amendment, I caution that, as worded, it would have an unintended consequence. We should not allow that to happen and should ensure that our diocesan boards of education continue to have the recognition and, indeed, the requirement that they are consulted in the way that exists at present. If I may say so, we are back to the "as is" issue that has been mentioned in Committee on a number of occasions.

Lord Sutherland of Houndwood: My Lords, unusually, I disagree with my noble friend Lady Murphy, and I do so for three reasons. First, we are talking about consultation, not a power of veto. Secondly, it seems to me only good manners to talk to the sponsoring body, and good manners are not yet wholly absent from public life. Thirdly, and perhaps more importantly, I have no doubt that consulting the body in question would enable a smoother transition to the new status because one wants the co-operation of those who have helped to appoint the head teacher and of the original sponsors in order to make the school successful in the future.

Lord Peston: My Lords, I have been reading a lot recently about ambiguity in legislation and the problem of its interpretation. I find this section of the Bill potentially extremely ambiguous. Indeed, whoever drafted this section was perfectly well aware of that because the sentence which we are asked to omit includes the words,

If you then read on further to subsection (5), there is no doubt that, in the case of the Church of England and the Roman Catholic Church, the appropriate religious body is well defined-it can be done. It must suddenly have dawned on whoever drafted this provision that in the case of almost all the other religious schools, there is no appropriate religious body. If we take a Jewish school, a number of multifarious bodies might claim to be the significant body for Jews-certainly, it would not be the Chief Rabbi who has only a bit of the orthodox Jewish community as there are lots of other bits. I would not be at all surprised in the case of Muslims or Islam, whichever way you look at it, that, again, there would be a great many bodies which would all claim to be the appropriate religious body.

Therefore, this bit of the legislation is just plain wrong. It needs to be taken away by the Minister and redrafted no matter what happens with the amendment in the name of the noble Baroness, Lady Murphy. I am clear that whoever drafted it knew this at the time that this was written. I do not think that the Minister can get away from this at all.

Lord Elton: My Lords-

Lord Peston: Perhaps I may just finish. The other ambiguity concerns the word "consult". What does it mean? Certainly, when I was a professor, I used to consult the students but it did not mean that I took any notice of them. In this case, does consult mean, and is it clear in terms of the interpretation, listening

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to them and doing something about what they are worried about? That is always a problem. We have had this issue on many other bits of legislation in my career here. The best advice that we in this Committee could give the Minister is for him to go away and come back to us with better drafted legislation.

Lord Elton: As the noble Lord is on the question of definitions, I assume that consultation is the same in all statute. It occurs in so many clauses in every statute that everyone knows what it means. As to his second point, Section 88F(3)(e) of the 1998 Act contains the definition of the body which he says is not defined.

Baroness Whitaker: My Lords, I do not want to hold up the Minister but I should like to endorse what my noble friend Lord Peston has said. At this time particularly, we need to be careful about foundations or organisations aimed at dividing our community rather than uniting it.

Lord Hill of Oareford: My Lords, in some ways the discussion we have had around this matter reprises some of our earlier debates on the place of religion in the school system. We will probably have a bit more in a moment when we move on to the next group. To some extent, we are on reasonably well worn ground for this Committee. The right reverend Prelate reminded us that the Government's basic approach is to try to operate on an "as is" basis and not unpick things that have been arrived at over a period of time. It is certainly the case that the Government are committed to intervening in schools where there is consistent underperformance, whatever kind of school it is-faith or non-faith-which is the starting point for these measures.

The point raised by the noble Lord, Lord Peston, in some respect, has been answered by my noble friend Lord Elton who is more knowledgeable than me on a lot of its history and drafting. On the precise point, I will write to the noble Lord and will copy it to my noble friend. I will set that out straight for him.

The reason for the Government taking the position that they have is that we know that religious bodies have often made a substantial contribution to these schools, not only through influencing the ethos and practice of the schools but also in contributing land and sometimes money for educational purposes. In recognition of that role, we think that they have a right to be consulted. As the noble Lord, Lord Sutherland of Houndwood, pointed out, this is a right to be consulted and not a right to veto a conversion, which is an important point. We want the religious authorities to be reassured that we will take account of their views when it is necessary to intervene in their schools.

We know that religious bodies have played an important role in our diverse educational system and we value that contribution. We will intervene in underperforming schools, including faith schools, but we think-a point, I think, also made by the noble Lord, Lord Sutherland-that intervention in those schools will work best when it is done in collaboration with the faith bodies so that due consideration is given to that school's religious ethos. With that, I would ask the noble Baroness, Lady Murphy, to withdraw her amendment.

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4.45 pm

Baroness Murphy: I thank the Minister for that. To be honest, I am convinced but I would obviously like to talk to the noble Baroness, Lady Massey, before deciding whether to return with another question on this. I am particularly fond of good manners. The noble Lord, Lord Sutherland, and the right reverend Prelate have reminded me that consultation and asking people is no bad thing under any circumstance, as long as we can be reassured that there is no veto and that it will not extend the influence over the decision-making process any more than an expression of an opinion. I beg leave to withdraw the amendment.

Amendment 126 withdrawn.

Clause 54 agreed.

Clause 55 : Academies: consultation on conversion

The Deputy Chairman of Committees: I now call Amendment 126ZZA.

Baroness Hughes of Stretford: With respect, did the Deputy Chairman call Amendment 126ZZA?

The Deputy Chairman of Committees: Yes, Amendment 126ZZA to Clause 55.

Baroness Hughes of Stretford: That is the first amendment in what is not the next group of amendments but the group after that, according to the draft groupings. Is that not right?

Lord Skelmersdale: My Lords, the noble Baroness, Lady Murphy, has just withdrawn Amendment 126 to Clause 54. We now move on to Clause 55, which starts with Amendment 126ZZA.

Baroness Hughes of Stretford: I beg the Committee's pardon. I was working to earlier groupings and wondered why they were listed in that way. I obviously did not check my computer at the last minute.

Amendment 126ZZA

Moved by Baroness Hughes of Stretford

126ZZA: Clause 55, page 45, line 22, leave out "is converted into an Academy" and insert "applies for an Academy Order"

Baroness Hughes of Stretford: I shall speak also to Amendments 126ZZB and 126ZBA to Clause 55, and to Amendments 126ZD and 126ZE to Clause 58. Elements in those clauses and these amendments relate to the requirements on the consultation that must take place before a maintained school can convert to an academy. The proposals in the Bill are worded such that the governing body itself can decide who is consulted and when that consultation takes place. That timing can include consultation taking place not only before but after an order is applied for or is made. That seems

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to us to be contrary to the spirit of any consultation, in which, minimally, there ought to be legitimate parameters around who should be consulted and when the appropriate timing is. Most reasonable people would say that consultation should take place before a decision is made.

These amendments therefore seek to say, first, that there should be some minimal requirements on who is consulted-that the governing body cannot have a completely unfettered right to decide whether anybody, or nobody, will be consulted.

Secondly, the consultation should take place in time to inform decision-making. If it can take place after a decision has been made, if only in principle, that begs the question of what purpose it serves. As to consultation that can take place after an order is made, let alone an application for an order for a school to become an academy, it seems to suggest that the Secretary of State will make a decision in favour of an application whatever the consultation might say. That does not do the Government much good and certainly does not suggest that they regard consultation as a meaningful process.

There are important issues of principle here. Before making this speech, I thought of all the consultations that Governments and many other organisations are required to have with the public before they put forward proposals or change legislation. All the consultations have a set of minimum requirements on the people consulting as to what should be the scope and the best timing for the consultations. I cannot for the life of me think that it is reasonable, again on the altar of freedom for schools, to tear up the reasonable notion that there should be a definition in statute of the scope and timing of this consultation. That is a reasonable thing for the law to say and therefore I hope that noble Lords will support the amendments.

Baroness Brinton: I will speak to Amendments 126ZB and 126ZC. Before I do, I will say that I support the comments about consultation made by the noble Baroness, Lady Hughes. Post-event consultation is not consultation. In my experience, and I am sure in that of many noble Lords present, it is infuriating to communities when that happens, because they realise that they are being given information rather than a chance to influence what is happening.

The intention of the two amendments that I am speaking to is simple and sits at the heart of the coalition agreement's stated desire to affirm and support localism. I turn first to Amendment 126ZB. The current consultation on intervention for conversion to an academy is the opposite of true localism. As expressed in Clause 55(3), the consultation is done either by the proposed academy-and we know from experience that many academies do not want to consult widely-or by the Secretary of State. How on earth the Secretary of State or his hard-pressed civil servants can seriously manage such consultations, I do not know. Even more worrying is the fact that this is exactly the role that should be given to the independent but local elected authority, which has the strategic responsibility for economic and social well-being in its area and must ensure the appropriate provision for schools and the learning of education and skills.

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Amendment 126ZC follows logically when a new school is being considered for academy status. At present, the Bill leaves everything to the Secretary of State, who will have to consult locally in order to take a view on what is needed. Therefore, it seems sensible that,

taking account of other school provision in the area. We should see new schools only in areas where there is a need. In these straitened times, setting up new schools where there is a surplus of school places is not the most sensible thing to do. Finally, I will just say that we are concerned that this undoes some very sensible work done with the Academies Act before Christmas, and we hope that the Minister will reconsider the Government's position.

Baroness Walmsley: My Lords, I support what my noble friend said. Clause 55(3)(b) states that one of the people who is allowed to carry out the consultation, apart from a school's governing body referred to in Clause 55(3)(a), is the person with whom the Secretary of State proposes to enter into academy arrangements. That does not seem terrible neutral to me. Guess what the result will be. To the question, "Do we want a new academy?", I think the answer will be, "Yes, we do". It seems inconceivable that any consultation carried out by the body that is straining at the leash to open this academy is going to come up with the answer, "No, we don't want it". So it is not very neutral.

The Lord Bishop of Hereford: My Lords, I think that we would all welcome and encourage wide consultation. How helpful is it to be overprescriptive about exactly who is in the list and who is not, or indeed about timing? Once again, within our church schools, we always encourage consultation at the earliest possible opportunity.

Because these amendments refer also to Clause 58, I would be grateful if I might ask another question. Will the Minister say something more about changing the age range within academies, as provided in Clause 58? Changing the age range would help in some situations and examples. For example, if a primary school has a nursery school attached, it would not be possible to include the nursery school, because that would be a change of age range, whereas in reality, if such a decision is to be made, at least having the option would be hugely helpful. I may have misunderstood, judging from the looks coming from the Minister. I am simply making the point that it would be hugely helpful. If groups have been working closely together, allowing them and giving them a mechanism to work to become united would save huge amounts of bureaucracy and red tape. I understand that there might be pressures the other way to keep them separate, because that would make it easier either for Government or local authorities, but it would certainly not make it easier for the schools or the academies themselves. I would be grateful if the Minister would say something about that, because I do not think that it is addressed elsewhere in the amendments.

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Lord Hill of Oareford: My Lords, the main points made by the noble Baroness, Lady Hughes, and my noble friends, revisit many of the issues that we discussed at length during the passage of the Academies Act last year. The current arrangements in place for consultation were arrived at following those debates a year ago and were amended to reflect points made then by my noble friend Lord Phillips of Sudbury and my noble friend Lady Walmsley, whom we welcome back to the Committee.

As we said during the passage of that Act, the Government believe that when an academy is being set up there should be fair and open consultation, but we believe that those running the consultation are best placed to determine whom to consult, how, and at what stage of the process. As far as timing is concerned, an academy order is a procedural step which enables a school to convert. It does not place the school or the Secretary of State under any obligation to proceed with the conversion, and it does not mean that conversion is a foregone conclusion. The key point which we debated last year is that the consultation has to happen before the funding agreement is signed-that is the point at which the agreement becomes binding. The precise point at which it happens should, it seems to us, be left to those carrying out the consultation.

I agree with the noble Baroness, Lady Hughes, that it is quite difficult to foresee situations where it would not be appropriate to consult the kinds of people that she mentions in her amendment. But as we argued last year-I think it is a point made by the right reverend Prelate-we do not think that we need to specify long lists of people who need to be consulted, and that is a general approach from which we are, across the piece, trying to move away.

5 pm

Lord Knight of Weymouth: I think I understand what the Minister is saying when he says that you should not prescribe a long list, but this is not a long list. It is four of the key groups. They are important to name because we can assume that it is extremely unlikely that an organisation would not consult parents, pupils or staff, but I can foresee plenty of circumstances where an academy group might not want to consult the local authority. I think that the points made by the Minister's noble friends about allowing the strategic role of local authorities to continue are important.

Lord Hill of Oareford: Whether the list is short or long, the point is that if there is a short list, there will be an argument about people who have been left off. People will ask why they have not been consulted, and then we will have a debate about lengthening the list. If there is a long list, there are the problems that the noble Lord has already accepted. It is perfectly possible to leave it to people's common sense and judgment. As the noble Lord knows from the work he has done with academies, if you are setting about an academy conversion, you want to do it with the support of local people and the community because that is how you get it off to a good start. I think that we can leave it to their common sense and wisdom.

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Lord Knight of Weymouth: I am sorry to come back, but the key word at the beginning of Amendment 126ZBA is "including". This is not an exclusive list, so whether it is a long list or a short list is to some extent irrelevant. We are not going to have a debate about whether something has been excluded once the word "included" is in it. The key thing is that in statute it would be a requirement to consult the local authority. That is what his noble friends are after.

Lord Hill of Oareford: The view of the Government is the same as it was a year ago. It is the view that the House reached after debates and, indeed, votes; namely, that we do not need to prescribe lists of people, short or long, in legislation in the way that perhaps happened in the past.

Baroness Hughes of Stretford: If the Secretary of State received an application and the consultation that had been done beforehand did not include the views of parents and staff, what would his attitude be in making a decision on the basis of that consultation?

Lord Hill of Oareford: The view that the Secretary of State would take is that schools that are converting need to comply with the terms of the legislation-the Academies Act-which requires that they should consult such people as they think are appropriate.

Baroness Hughes of Stretford: We have had a number of occasions when, because the Minister is a very reasonable person, we have not pressed to the point where we have got a satisfactory answer from him. This is one of those occasions. We had a similar situation not long ago in relation to qualified teachers. What would the view of the Secretary of State be if he received an application that did not inform him of the views of parents? What action would he take to ask why? Would he ask the applicants to go back and get them? Would the Secretary of State be happy to make a decision without knowing what local parents thought about the proposal?

Lord Hill of Oareford: It is clearly the case that the governing body wanting to convert has to consult the groups it considers appropriate. If people felt that they had not had a chance to be consulted and were to raise those complaints with the department, that would clearly be something that the department would have to take into account in reaching the decision that it takes. It is not possible for me to go through every possible circumstance that one can possibly come up with and give an answer. There is a clear legislative framework within which the department operates.

Baroness Hughes of Stretford: I want to press this again because this is not about what the applicants think. This is about the point at which there is an application on the table for a decision by the Secretary of State. I am asking the Minister to tell us what would be the view of the Secretary of State. Does he think he could make a decision without knowing the views of local parents? What would be in the Secretary of State's mind and what would the Government at that point require in order to make a decision? If he were to say that the Government would require to

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know what parents think, I would say that that requirement ought to be laid upon the applicants in the way that they frame the consultation. However, at the moment I am asking: what is the Government's view about what they need to make a decision?

Lord Hill of Oareford: I am sorry not to be able to be more helpful to the noble Baroness because I know that she is also extremely reasonable. She will no doubt keep pressing and we can return to this another time. But the Government's position is that the legislative requirement on a converting governing body is set out in the Academies Act 2010. The Government take into account whether or not schools have demonstrated that they have complied with those requirements, which are set out clearly and were inserted as a result of debate on this Bill last summer.

Lord Peston: My Lords, is the noble Lord going to respond to his noble friend's devastating intervention on new Clause 5(3)(b) to be inserted in the 2010 Act under Clause 55? Will he explain why she is not right that the one group which should not under any circumstances carry out the consultation is the people mentioned in that new clause?

Lord Hill of Oareford: I was coming to that point. I have not got very far with my response. On precisely that point, my noble friend Lady Brinton raised the issue of who should do the consulting when schools are considering converting to academy status. As we have just been discussing, the starting point of the Government is that it should be carried out by the school's governing body. However, this approach might not always work with underperforming schools that are eligible for intervention. There may be rare occasions when the governing body of the underperforming school seeks to block the development of an academy solution by refusing to consult. Clause 55 resolves this issue, as my noble friend pointed out, by permitting the proposed sponsor to do the consulting.

My noble friend suggests that the local authority would be a better alternative than the proposed sponsor. Clause 55 relates to schools that are failing their pupils and we think need radical improvement. We know that the evidence shows that converting such schools into academies with excellent sponsors can bring about that improvement. Becoming an academy involves, by definition, moving out of local authority control, so it seemed to us it was not right for the local authority to lead the consultation. It is the sponsor who has been identified as able to transform the school, so in our view they are better placed to consult on its future direction. But that consultation has to be carried out in a proper way.

My noble friend also raised important points about the local authority role in decisions about new and additional academies, such as free schools. I hope that I can reassure my noble friend that what her amendment seeks to put into law is already happening in practice. As a result of views expressed during the passage of the Academies Act, the Government introduced a specific requirement on the Secretary of State to take account of the impact of free school proposals on other schools. In meeting this requirement, the department

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seeks the view of relevant local authorities. In addition, any group wishing to set up a free school has to consult locally on its proposals. The consultation report is an important part of its application to the department. In deciding whether to approve a free school proposal, the Secretary of State therefore takes account of the views of the local authority and other interested parties, including on the issue of the level of need for additional school places.

We know that in practice, many local authorities are already playing a more active role than this. Some are building the free schools programme into their strategic schools planning and have provided proposers with support in areas such as finding sites, getting planning permission and working out levels of demand. It is the case that we do not believe that free schools should be set up only where local authorities identify that they are needed. The key point is to try to make the system more responsive to parental demand by giving parents, teachers or community groups the opportunity to do so.

We accept that consultation is important. It should be conducted in an open way. It should be appropriate to local circumstances. The Academies Act and this Bill provide for such consultation and I would therefore urge the noble Baroness, Lady Hughes of Stretford, to withdraw her amendment.

Baroness Hughes of Stretford: My Lords, I thank those Members of the Committee who have contributed to the debate. I also support the amendments spoken to by the noble Baroness, Lady Brinton, which would further refine reasonable requirements regarding how and by whom the consultation should be undertaken. I absolutely agree that it should be undertaken by people without a vested interest in the outcome. I also agree with her that the proposed new schools should comply with local authority requirements regarding the need for new schools.

The fact that this matter was debated a year ago when we discussed the Academies Bill-as the Minister said-does not mean that we should miss an opportunity to correct something that needs to be corrected. There are two key questions here: why should decisions on the scope and timing of consultation be left to the governing body to determine and why should a party with an interest in pursuing the objective of an academy be allowed to undertake the consultation? Unfortunately, the Minister did not answer either of those questions at all, let alone unsatisfactorily. His constant recourse to the legislative requirements for consultation, as if they have nothing at all to do with the Government, was very strange indeed.

My questions sought to ascertain what the Government require by way of information about the views of parents, staff, pupils and local authorities-four key groups-when the Government finally take a decision. Will they take a view at that point in the decision-making on the adequacy of the consultation, and therefore on the quality of the information that the Secretary of State has to enable him to make an informed decision? I am afraid that the Minister implied that the Government will require no information on the views of those groups. The governing body may decide not to consult those people or decide to consult them only after the

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Secretary of State has made a decision. That is simply not right. I think that all of us in this Room know that it is not right. I have some sympathy with the Minister as he is reasonable and he has been placed in a position of arguing for the demonstrably unarguable. I have no doubt that we will return to this on Report, but for the moment I beg leave to withdraw the amendment.

Amendment 126ZZA withdrawn.

Amendment 126ZZB not moved.

Amendment 126ZA had been withdrawn from the Marshalled List.

Amendments 126ZB and 126ZBA not moved.

Clause 55 agreed.

Clauses 56 and 57 agreed.

Clause 58 : Academies: new and expanded educational institutions

Amendments 126ZC to 126ZE not moved.

Debate on whether Clause 58 should stand part of the Bill.

The Lord Bishop of Hereford: My Lords, am I allowed to ask whether the Minister might be kind enough to respond to the point I made in relation to this clause? Given all the other exchanges that we have had, I think it has slipped his memory.

Lord Hill of Oareford: I am not sure what the protocol is but I will write to the right reverend Prelate.

The Deputy Chairman of Committees (Viscount Ullswater): The Minister can reply.

Lord Hill of Oareford: I will write to the right reverend Prelate setting out the matter rather than holding up the Committee.

Clause 58 agreed.

Amendment 126A not moved.

Clause 59 agreed.

5.15 pm

Clause 60 : Staff at Academies with religious character

Amendment 127

Moved by Baroness Turner of Camden

127: Clause 60, page 48, line 28, at end insert-

"( ) In section 59(1) of SSFA 1998 (religious opinions etc. of staff), after paragraph (b) insert-

"(c) an Academy that is not religiously designated"."

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Baroness Turner of Camden: My Lords, I will speak to the amendments in this group in my name. They seem complicated, which is because reference needs to be made to previous legislation. However, they have been drafted with a view to protecting teachers and ensuring that they have legislative cover in line with the European employment directive and our equality law.

When the previous Government introduced academies, they stipulated that teachers did not have to be adherents to a stated religion unless they were involved in teaching RE or religious instruction. The concept was introduced of reserved teachers, selected for their fitness to give religious education in line with the precepts of the designated religion. However, they did not constitute the majority of the staff-they had to be no more than one-fifth of the staff-and other teachers were in no way required to adhere to the religion or its precepts. However, the opinions of several legal and academic lawyers contend that the Bill does not provide adequate protection for non-religious teachers. They say that it falls far short of the standards required by the European directive. The aim of my amendments is to ensure that this protection is available.

I turn to the first of my amendments. Amendment 127 -and Section 59 of the SSFA to which it refers-protects non-religious staff in community schools from discrimination on the grounds of their religion or lack of it. This includes not being required to take religious education or to conduct collective worship. I commend the Government for transferring to the Bill existing protections for non-religious teachers in voluntary controlled schools that are transferring to academies, but unfortunately this has not been carried through to teachers in community schools. The amendment does this. I do not accept that it is reasonable for teachers, some of whom may be of many decades' standing, to lose their protection for not teaching RE. This regression is in contravention of the employment directive.

Amendment 128 also deals with aspects of previous legislation, in particular Section 60(5) of the SSFA. For a long while, this section has been regarded as draconian and the amendment states that it should be omitted. Among other things, Section 60(5) states that,

That is pretty draconian and a number of lawyers who were consulted believed it to be a bit over the top. The suggestion of the amendment is that it should not be applied.

There is also the issue of head teachers. It has been suggested that the head teacher of a school should be a reserved teacher. Amendment 129 states:

"The head teacher of such a school shall not, while holding the post of head teacher of the school, be a reserved teacher".

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That seems reasonable, because the head teacher is the head of a staff only one-fifth of whom are necessarily reserved teachers. Therefore, it is reasonable that the head teacher should not have to be a reserved teacher. If this were insisted upon, it would mean that it would be somewhat of a problem for teachers who had career aspirations, because they might find it difficult to become head teachers in a situation where they were required to be a reserved teacher.

Amendment 130 sets out a reasonable arrangement.

The Lord Bishop of Hereford: It is my understanding that the head teacher does not have to be a reserved teacher, but that they may be. I thought that the noble Baroness said that the head teacher had to be a reserved teacher. My understanding is that that is not correct.

Baroness Turner of Camden: I am glad to hear that.

The Lord Bishop of Hereford: But others will know better.

Baroness Turner of Camden: All I can say is that the legal advice I had on the text before us is that it would be better to say in the Act that a head teacher did not have to be a reserved teacher. But if the right reverend Prelate says that that is not so, I am quite happy about that.

Amendment 130 sets out the arrangements in regard to voluntary aided schools, but an important piece has been put into the bottom of this text. Proposed subsection (5A) in Amendment 130 states that,

I understand that that wording is in compliance with the European text to which I earlier referred.

Most of the other amendments deal with what we are trying to achieve, which is a situation in which the arrangements that have been introduced by the previous Government in relation to academies are applied throughout the educational setup. In other words, there should be arrangements for people who are regarded as reserved teachers, but the rest of the teaching population should not be restricted in any way, and they may or may not be religious or may have no belief at all. I am asking the Government to consider seriously what is proposed here.

The amendments, as I understand it, do not interfere with the rights of religiously designated schools. All they do is ensure that the basic non-discrimination law protects teachers. They should be appointed on the basis of their ability to teach their subject. Their religion or non-religion should be a private matter, unless of course they are specifically appointed because of their ability to teach RE and deal with religious instruction. That is met by the proposed amendments, which are in line with the EU directive. I had very detailed legal opinion here, which is in full support of what I have been saying. As I said earlier, the intention is to give protection to people who have religion which is not the same as the designated one, or have no belief at all. I hope therefore that the Government will consider seriously what has been said because, if the

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amendments are not regarded as suitable but they accept the concept, they can come back with different wording. I beg to move.

Lord Avebury: My Lords, I begin by declaring an interest as an honorary associate of the National Secular Society, which has been instrumental in securing that these amendments are before your Lordships today. There have been herculean efforts to get the matter considered, first, by the Equality and Human Rights Commission and now by your Lordships in Committee. The noble Baroness, Lady Turner, has made reference to the Council's opinion, dated 24 March, which had been sought by the Equality and Human Rights Commission as a result of persistent representations by the National Secular Society about the unlawfulness of certain provisions in Section 60 of the School Standards and Framework Act 1998, and of amendments to that and other sections of the 1998 Act which are included in this Bill.

Yesterday, I alerted the Minister's office to my intention of following the noble Baroness in referring to the 90-paragraph opinion by Mr David Wolfe of Matrix Chambers-he a distinguished lawyer in one of the leading chambers in the whole of England-which was deposited in the Library of your Lordships' House following a Question for Written Answer dated 11 August 2011, col. WA 433.

If I were to go through the whole list of alleged violations and potential violations of the European directive 2000/78/EC, which were identified by counsel, we should be here all night. However, it might help if I begin by explaining that Articles 4(1) and 4(2) of the directive provide a partial derogation from Article 2 which says that direct or indirect discrimination on grounds of religion or belief is proscribed in the field of employment. The derogation, which must be narrowly construed, provides effectively that a difference in treatment on grounds of religion or belief shall not constitute discrimination where the characteristic is a genuine and determining occupational requirement, provided that it is proportionate. Whether that derogation applies to reserved posts in the present context is arguable but in counsel's opinion it cannot go beyond that.

To pick up on just a few points of detail, counsel says that SSFA,

for which he gives several different reasons. This section applies to all voluntary-aided schools, religiously designated academies and to up to a fifth of teacher posts in voluntary-controlled schools. He expresses concern about the,

If this assumption is wrong they would not be able discriminate against all staff on religious grounds, as the law currently allows in voluntary-aided schools.

This concern is repeated about religiously-designated new academies or free schools and independent schools with a religious character. If they do not fall within Article 4(2), which as I have said must be narrowly construed, it is illegal for them to discriminate in the

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way the law at present purports to allow, and I dare say that this could be the subject of unnecessary litigation.

The opinion supports the proposal that Section 59 of the SSFA protections of staff in community schools should be continued when they convert to academies so that teachers cannot be required to teach RE, and of course staff should not be required to worship or believe. In the Minister's Written Answer to me of 15 March, he said that the Government were satisfied that their approach was compatible with the directive, but at that time he had not seen this counsel's opinion. When the NSS had a meeting with Minister Nick Gibb, some time in June, he appeared to be sympathetic to the amendment which counsel suggests.

There is support for conditions to be attached to the exercise of the Secretary of State's discretionary power in Clause 58 and Section 124AA(2) of the SSFA to convert VC schools to voluntary-aided academies so that they have power to discriminate against 100 per cent of staff rather than a maximum of 20 per cent.

Having reviewed the several alleged violations and potential violations of the directive which he shows as contravening the limits on derogation from Article 2, counsel concludes that,

He goes on to note that although he had not been asked to deal with Human Rights Act matters,

I just remind your Lordships that Article 14 ECHR prohibits discrimination on grounds of religion as well as other characteristics, and Article 9 confers the right of freedom of religion or belief. These are extremely serious matters. Given that the EHRC, as the Government's statutory equality watchdog, had this hugely damming advice about legislation and proposed legislation being unlawful, one would have expected it to warn the Government immediately and to call for corrective amendments to be brought forward. However, predictably, it sat on counsel's opinion for nearly three months. It was on the desk of the chair, Trevor Phillips, while the Bill went through another place.

5.30 pm

There is even some doubt about whether the opinion would ever have seen the light of day if we had not become aware of its existence and applied pressure for its publication. Since it entered the public domain, it has been drawn to the attention of Ministers and every interested agency, including those in the European Commission responsible for directive enforcement. I ask the Minister to let us have copies of the correspondence that has ensued between EC officials and his department since then. Yesterday, I notified the Minister's office that I would refer to the matter in the debate. I hope that he has come armed with a full reply. Perhaps the best way forward now-I bow to the

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noble Baroness who moved the amendment to see whether she endorses it-is for the Minister to let us have the detailed point-by-point response called for by an analysis that makes shocking charges of lawbreaking against the Government. Before Report, we should sit down with the Bill team and our advisers to see how we can best rescue the Government from a disaster of their own making.

Baroness Murphy: I shall speak to Amendment 133 in the group. It has very similar effects to Amendment 134 tabled by the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Avebury. Clause 58 introduces a new power for the Secretary of State to override by order the rules that have been imported governing the employment of teachers at voluntary-controlled and foundation schools with a religious character, which allow discrimination on religious grounds in favour of reserved teachers. Of course, Clause 58 allows new and wider discrimination, so that the academy school may apply preference to the appointment, promotion or remuneration of all teachers at the school in accordance with the tenets of a religion or religious denomination. This has the potential for many thousands of teachers to be implicated in changes of rules.

I understand that the Minister for Schools, Nick Gibb, has said that, as with maintained schools, the Secretary of State would allow this change only where a strong proposal was made and a thorough consultation had been carried out. However, it seems extraordinary that any state-maintained school should be able to discriminate against teachers or staff on grounds of religion. There is no statutory guarantee that future Secretaries of State will not simply allow all schools to make this change under Clause 58. It seems strange to allow this new and potentially wide discrimination against teachers in an academy school that has transferred from a voluntary controlled school with a religious character. Amendments 133 and 134-the latter is perhaps a little weaker in terms of the consultation that it asks for-basically ask the Government to withdraw this. In the light of the discussion by the noble Lord, Lord Avebury, of the legal implications, I wonder why Clause 58 is in the Bill at all.

Lord Peston: Noble Lords will not be surprised to know that I take it for granted, somewhat cynically, that religious schools will be biased in favour of appointing and promoting people of the same religion. That is part of human nature and it is how people carry on. I do not need to remind noble Lords that I am not qualified in the law. However, I am absolutely horrified to hear what both my noble friend Lady Turner and the noble Lord, Lord Avebury, have said about the legal advice they have been given from lawyers, who are certainly well qualified to give such advice.

I have a couple of points for the Minister. First, do we have any data on what actually goes on in these religious schools? They are financed using public money but do we have data on the religious mix of their staff and of who gets promoted and who does not? Are there any facts at all that could guide us? Secondly, if the law is being broken, I am not clear who is breaking it. I would have guessed that it was the schools that

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were breaking the law but the noble Lord, Lord Avebury, seemed to suggest that it was the Government, so I am a bit lost on that. I wonder if the Minister could tell us something about that as well. I assume that for one lawyer who you could buy to give you one opinion, the Government could buy another one to give them a different one. That adds to my cynicism. Finally, I hope that the Minister is not going to go through a legal document sentence by sentence, otherwise we will be here past 10 pm.

Lord Hill of Oareford: My Lords, on that particular point let me reassure the noble Lord, Lord Peston, that I do not intend to do that and am not equipped to do it. Generally, there have been a number of important detailed and technical points made by the noble Baroness, Lady Turner of Camden, who moved the amendment, and by my noble friend Lord Avebury. The sensible thing on some of those technical matters is to follow them up in writing and to have the kind of meeting that my noble friend suggested. I would go through it in that way rather than trying to grind through technical and detailed points now, which I would not get right either. Generally, that is a sensible way forward but perhaps I might make a few general responses to some of the broad points that have been made, then I will follow them up as I have suggested.

The Government's overall position, as noble Lords will know, is that we accept that faith schools should have freedoms to employ certain staff according to religious considerations. Those freedoms are there for a reason: to maintain their ethos and to provide the sort of education that parents want. The School Standards and Framework Act 1998, which was passed by the previous Government, reflects that position and we believe that it still strikes the right balance between the prohibition of religious discrimination and the need for faith schools to maintain their religious character.

As for the general point made by my noble friend Lord Avebury about the European framework directive concerned, as I said I will follow that up with him. We do not accept that Section 60 of the School Standards and Framework Act contravenes it. We have seen the opinion that my noble friend referred to and I am advised that we have not changed our view on that. However, as I said, we will reflect and I will meet him to discuss that with officials who will be better equipped than I to have a sensible conversation with him.

So far as academies generally are concerned, it is our policy that faith schools converting to academies will, upon conversion, retain the freedoms and responsibilities which come with those freedoms. That is true in terms of admissions, as we have discussed before, and in terms of staffing. Voluntary-aided schools have always had the ability to take faith into account in the employment of all of their teachers, so where a VA school converts we have preserved this position. Voluntary-controlled and foundation schools have, in comparison, historically only been allowed 20 per cent of staff as reserved teachers, employed to deliver RE in accordance with the tenets of the school's faith. Where a school's freedom to take religious considerations into account has historically been restricted in this way, we have also made a commitment that those restrictions will continue when a school converts. This

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position is currently protected in academies' funding agreements but, as the noble Baroness, Lady Turner of Camden, said, we are using Clause 60 to ensure that these protections are also preserved in legislation. That was a commitment I made last year to the noble Baroness, Lady Massey, who is sadly not in her place, during the passage of the Academies Act, and I am glad to have the chance to give it legislative effect.

The noble Baroness and the right reverend Prelate discussed a specific point, and I hope this will clarify their exchange. I am told that the Education and Inspections Act 2006 amended the School Standards and Framework Act 1998 to allow, but not require, the head teacher to be a reserved teacher, so the head teacher may be a reserved teacher, but does not have to be. That was to meet the needs of small schools with few teachers.

Turning to the specifics of the clause, Amendments 133 and 134 relate to the Secretary of State's power to make an order to disapply the requirement that academies that were previously voluntary-controlled or foundation schools must employ up to 20 per cent of their teachers who are selected on their ability and willingness to teach denominational RE. Once that requirement is disapplied, the academy will have the ability to select up to 100 per cent of its teachers based on faith criteria, as any other independent school can. This was the point that the noble Baroness, Lady Murphy, was concerned about. I would like to make it clear to her that the power to issue such an order would be used only in circumstances where such an academy had changed its governance arrangements from minority to majority faith representation. It would mirror a process that is already possible in the maintained sector whereby, for example, a VC school can change category to a VA school and has to go through a consultation.

I agree with the point that issuing an order should not be a decision that is taken lightly. Any order would be issued only if a clear proposal had been set out justifying a change in the academy's governance and staffing arrangements, a consultation of affected parties had taken place and a considered decision had been made in the light of responses to that consultation. Such an order would contain transitional provisions to protect the employment of teachers employed prior to the order taking effect. I hope that provides some reassurance.

On Amendment 127, I am advised that the provisions of the Equality Act 2010 mean that no teacher in an academy without a religious ethos can lawfully suffer less favourable treatment because of their religion or belief, as is required by the framework directive, so we think that the replication of Section 59 of the School Standards and Framework Act 1998 for non-religious academies would be an unnecessary additional layer of legislation.

As I said, I will follow up some of these more technical, detailed points, and we can pursue them further. Overall, the Government's position is that parents choosing to sent their children to a faith school do so with the understanding that-

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Lord Sutherland of Houndwood: Will the Minister clarify a point for me on this? The amendments have been presented, quite appropriately, as a matter of protecting the conditions of work of staff. That I understand, and naturally I support it very warmly, but I am also concerned about protecting the conditions of learning for pupils in these schools. Will exemption from inspection attach to some of these schools with a fairly high proportion of reserved teaching places? If that exemption could apply, what protection will there be for children who with a thorough inspection of the system could learn whether the teachers appointed in this way had the appropriate qualities and skills?

Lord Hill of Oareford: We touched on this before when we had the debate, which seems a very long time ago, about the arrangements for Ofsted and exemption from inspections. I know that the noble Lord has strong views on that point which we will, no doubt, return to later. The short answer to his question is that I think he knows the answer to his question. It was a rhetorical question about whether it is possible that some of those schools could be exempt from inspection because if they have an outstanding Ofsted clarification the answer to that question is probably yes. We will discuss that further.

5.45 pm

Overall the legislation allows faith schools to maintain their religious ethos. We are replicating that position with regard to academies. The Bill makes clear the position of staff in VC schools converting to academy status, which I think noble Lords have welcomed. With that response, those reassurances and the commitment to speak further, I hope that the noble Baroness, Lady Turner of Camden, will feel able to withdraw her amendment.

The Lord Bishop of Hereford: My Lords, I am sorry if I am rather too new to this process. I though that the Minister stood just to address some of the narrow points that the noble Lord, Lord Avebury, made. I hope the Committee will allow me to react, not surprisingly, to some of the comments that have been made. Is that in order?

Baroness Garden of Frognal: It is perfectly in order if the right reverend Prelate addresses the amendments that have been set down.

The Lord Bishop of Hereford: They are precisely what I want to address, as well as the debate that has just happened. I was here on Monday, when it seemed to me that the debates reflected a common purpose. Although they came from slightly different slants and slightly different views, they were not very far away. It is difficult not to regard the speech by the noble Lord, Lord Avebury, in a rather different way. Indeed, it is difficult for me to sit here without regarding it, perhaps mistakenly, as more akin to a full-frontal assault on the dual system as we have it.

I observe that the noble Lord began by saying that he is a member of the National Secular Society.

Lord Avebury: I said I was an honorary associate of the National Secular Society.

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The Lord Bishop of Hereford: That puts the noble Lord very much within the faith spectrum and reflects the views, understanding and philosophy that lie behind what the noble Lord said. It might help understanding of the debate if that is put more clearly in the faith spectrum rather than in some pseudoneutral position because it is a position of faith about belief. Therefore it reflects the understanding of the debate.

There are 12 amendments in this group which makes it very difficult for me to know how best to address quite so many amendments in one go when they address such sensitive and critical issues. They all relate to Clause 60. I know that the National Society has been in discussion with the Minister's department about a certain ambiguity there, and I shall make a general comment about that before going on to more particular points on some of the amendments.

We would be grateful if the Minister would confirm that while the bulk of Clause 60 refers to reserved teachers only, Clause 60(3)(9) refers to all teachers in a voluntary-controlled or foundation school with a designated religious character. As we have quite rightly been reminded, the purpose of reserved teachers is to provide denominational religious education when parents request it, as is their right. They may also teach the agreed syllabus for religious education, but that is not the reason for their appointment as reserved teachers. No other teachers may be required to teach religious education, whether the agreed syllabus or denominational. However, any teacher may agree to do so if requested, and any teacher may be specifically appointed to teach agreed syllabus religious education in accordance with a contract duly advertised and accepted. I would appreciate it if the Minister could clarify that understanding because the National Society is of the view that the clause has a certain ambiguity that we do not want to cause difficulties elsewhere.

To come more specifically to the amendments, part of my difficulty in listening to the debateis that it seems that noble Lords are in danger of omitting a clear starting point: namely, that faith schools are held on trusts, which require the relevant religious character to be sustained. Governance, employment, admissions, denominational worship and denominational religious education are the mechanisms by which the trustees, via the governing body and the religious authority, are able to ensure that the terms of their trust are being carried out. That is fundamental to the whole nature of this debate and therefore to the legislation itself. The Charity Commission would obviously have a great deal to say if the trustees were not carrying out their proper duties under law.

As has been observed in the other debates on these issues over the past nine days, the ethos and standards are all closely connected within the schools. A strong Christian ethos and high standards overwhelmingly go hand in hand. The noble Lord was asking about measures. There are plenty of them and plenty of objective evidence about precisely those kinds of areas.

Lord Peston: Is the right reverend Prelate saying that we know that there is no discrimination in appointments or promotion in these schools? Is there any evidence of that at all?

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The Lord Bishop of Hereford: At the moment, I am making the point rather about the inspections and the transparency that there is about them, as there is for any other schools. The same standards are required about the appointments processes in church schools as indeed in any other schools.

Lord Peston: The right reverend Prelate does not seem to understand my question. I was simply asking: do we know the facts? My view is that we do not. For example, I am not sure how many religious schools there are in the right reverend Prelate's diocese, but does he know the religious composition of all the teachers in all those schools-and if so, can that be made public?

Baroness Garden of Frognal: It might help the Committee if this debate were continued on a different occasion, because we are straying from the amendments which are on the Table. The Committee stage is designed to focus very much on the specific amendments that are here, rather than the more general debate such as we have on Second Reading.

The Lord Bishop of Hereford: I wanted to stress the point about the trusts because it seems to underline all 12 of these amendments, in terms of how they seek to unpick the dual system that we have and challenge so much of what is there about voluntary controlled or voluntary aided schools. I was grateful for the earlier points from the noble Baroness about Amendment 129. I think we have come to a similar point about that, in that quite clearly we would not want it to be impossible for head teachers to be reserved teachers. The Minister has kindly clarified that the current situation is that they may be, not that they are required to be. We certainly would not want any change in the legislation that made that impossible.

On Amendment 128, the voluntary aided power to use religious criteria for staff appointments is quite clearly a strong power. We readily acknowledge that, as would others here. It is bound to be regarded with concern by some-I appreciate that. However, the key for us is that trustees need to be able to ensure that the purposes of their trusts are being fulfilled. That is why the powers are given in quite the way that they are. Hence, an ability to appoint staff with a proven commitment to the religious character of the school is essential in order that the purposes of donors and the duties of trustees are not frustrated. That also seems fundamental within big society issues.

I jump forward to Amendment 136, which seems to be asking to allow reserved teachers to be appointed but not to allow them to be selected using any religious criteria. If that were included, I would find that a strange consequence. Would it not perhaps be a little like selecting a Labour candidate who may turn out to be a Conservative supporter? That may happen, but I would prefer not to see that in our church schools.

There are too many issues to want to dismantle the dual system. I do not want to go back over the more general points and debates that noble Lords have had about that previously. I also pick up the point made by the Minister on the "as is" issue. There are voluntary

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controlled schools that want to be able to change and become voluntary aided. That is currently the case. If they were to become academies, it seems to be important that what is available to them under the present situation should continue to be available under the new legislation. Similar points apply to independent schools which, in some cases, have similar trusts to those voluntary aided and voluntary controlled schools.

I believe that I have said enough to make the point about some of the concerns, in particular, but also about the more fundamental issues that underline them to make it clear why I have deep concerns about all 12 of these amendments. Rather than go through others in similar detail, I hope that what I have said will be understood and applied as they affect the rest of the amendments.

Lord Elton: The right reverend Prelate has not made the request but I make the suggestion that it might expedite things were he to be engaged in conversations between the Minister and the noble Lord, Lord Avebury, with suitable support.

Lord Avebury: Perhaps I should answer the criticisms which have been made about my contribution to this debate by the right reverend Prelate. He seemed to be suggesting that there was something improper in my raising these amendments and talking to them this afternoon or in the manner in which I raised them, which he contrasted with the proceedings that we enjoyed on Monday. He was suggesting that because I was an honorary associate of the National Secular Society, I was in some way trying to undermine the dual system, when all I am trying to do is to ensure that the trusts which administer faith schools do so in conformity with both European directives and with the European Human Rights Act. I think that the Minister's proposal is an excellent one, but as there is a fundamental dispute between us on whether these provisions are compatible with European law and with the Human Rights Act, we should sit down with our legal advisers and the Bill team to try to resolve them as best we can. I suggest that that is the best way in which we can move forward, if my noble friend Lady Turner agrees.

The Lord Bishop of Hereford: My Lords, may I just say that in no way was I suggesting-indeed, in no way was I saying-that any of the comments were improper. I was rather pointing out that they were not neutral. Like the noble Lord, I would be very happy for the lawyers to be able to sit down, as has been suggested by the Minister.

Baroness Turner of Camden: I would like to reply to the debate, which has been very interesting, and to make very clear that I also am a secularist. I have never disguised that fact. However, like most secularists, I also believe in equality. We also believe in freedom of religion. All we object to is that beliefs that we and other people do not share are simply imposed on us whether we like them or not. That is really what a lot of this is about. These amendments seek to protect the position of people who do not share a religious point

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of view but who nevertheless may be very good teachers and are appointed to teach their subject because they have training in their subject and are good teachers. However, they may not be participants in the religion that is designated to run a particular school.

Of course, we also support what the Government tried to do originally with academies. In fact, what we are trying to do in this Bill is to transfer that system throughout the education system. In the case of academies the Government established that there should be reserved teachers. What they could and could not do was precisely defined; and if teachers were not reserved, no pressure could be exerted on them to join a religion or be bound by any of its precepts. The advice that we have had, which was clear, was that unless we amended it in some way, there was a danger that the Bill now before us would not be regarded as complying with the EU directive. It was for that reason that we put down our series of amendments.

I am grateful for the Minister's response because I understand that he is going to look at some of these things again. We are happy to hear what he has to say. Of course, we are in Committee; we still have Report to go through, and we will take careful note of what has been said. I thank my noble friend Lord Peston for his support. In reply to his comment about who is breaking the law, as far as we can see, unless this Bill is amended, the green light will be given to people on the floor, so to speak, in education to apply what they want to apply because the law that we will then have will not prevent them doing so. If people objected, the only thing to do would be to go to Europe with it, and that is not a good idea. That is the situation and that is one of the reasons we wanted amendments before the Bill leaves this House.

In the mean time, I thank the Minister for what he has said. I thank the noble Lord, Lord Avebury, and other noble Lords for their comments. I beg leave to withdraw the amendment.

Amendment 127 withdrawn.

Amendments 128 to 130A not moved.

Amendment 131 had been withdrawn from the Marshalled List.

Amendments 132 to 134 not moved.

Amendment 135 had been withdrawn from the Marshalled List.

Amendments 136 to 137A not moved.

Clause 60 agreed.

Amendment 138 not moved.

Clause 61 agreed.

Amendment 139 not moved.

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Schedule 14 : Academies: land

Amendments 139A to 139G

Moved by Baroness Garden of Frognal

139A: Schedule 14, page 96, line 35, after "school" insert "or a 16 to 19 Academy"

139B: Schedule 14, page 97, line 2, after "school" insert "or 16 to 19 Academy"

139C: Schedule 14, page 98, line 3, after "school" insert "or 16 to 19 Academy"

139D: Schedule 14, page 98, line 22, after "school" insert "or a 16 to 19 Academy"

139E: Schedule 14, page 99, line 34, after "school" insert "or a 16 to 19 Academy"

139F: Schedule 14, page 100, line 14, after "school" insert "or a 16 to 19 Academy"

139G: Schedule 14, page 100, line 17, after "school" insert "or a 16 to 19 Academy"

Amendments 139A to 139G agreed.

Amendment 139H

Moved by Baroness Garden of Frognal

139H: Schedule 14, page 103, line 9, at end insert-

"This is subject to sub-paragraph (1A).

(1A) If a leasehold interest in land is held for the purposes of a new Academy, this paragraph does not apply to-

(a) that or any other leasehold interest in the land, or

(b) a freehold interest in the land.

(1B) An Academy is a new Academy for the purposes of sub-paragraph (1A) if, by virtue of section 9(1)(a) (new educational institutions), the duty in section 9(2) (impact on other schools etc) applied when the Secretary of State was deciding whether to enter into Academy arrangements in relation to it."

Baroness Garden of Frognal: My Lords, I shall speak to the amendments to Schedule 14 in the name of my noble friend Lord Hill. They were the subject of his explanatory letter of 8 September. Concerns were raised in the other place and elsewhere about the breadth of the new powers in the land provisions. Many land provisions in the Bill merely re-enact existing powers in previous legislation, with a small number of amendments. There are two main areas where there are new powers. First, the Bill puts the protection of publicly owned land and public investment in land used by academies on a statutory rather than a contractual basis. I am sure that noble Lords will agree with this objective. Secondly, it introduces new powers to transfer the publicly funded land of foundation and voluntary schools to free schools and academies when a school closes or the land is otherwise disposed of. I seek to provide reassurance in relation to these powers in my remarks.

Amendments 139H, 139K and 139L reduce the reach of the second area of new powers so that they do not apply to land that is leased to a new academy by a private landlord. Where we are engaging in commercial negotiations with private landlords for the lease of land to new free schools, it is more appropriate to protect any public investment in that land by contractual means rather than in statute. In addition to speaking

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about these amendments, it may be helpful if I say a little more about the circumstances in which we envisage the powers being used in respect of land held by the trusts of schools and academies, many of which are church diocesan trusts.

While we will consider each case on its merits, where trustee land is being disposed of, our intention is that, as a general principle, the Secretary of State will consider using his powers to direct the transfer of land only where the value of the public investment in it is greater than 50 per cent. We shall have further detailed discussions with interested parties with a view to developing agreed guidance about the operation of these powers, including how the value of the land and the public investment in it is calculated. Similarly, the Secretary of State will not normally use his powers to transfer trustee-owned school land in which there has been public investment if the land continues to be used for other purposes of the trust where these obtain. If it were proposed that such land should be removed from educational use, yet in the view of the Secretary of State there were compelling reasons why it should be retained, any such transfer would take place only following full consultation with the trust and any relevant religious authority, and having regard to any relevant views of the Charity Commission. Should this arise, there would, of course, be appropriate payment to the trust in respect of the private interest in the land. Notwithstanding the above, where trust land that has been enhanced at public expense is disposed of, any public investment will continue to be protected in statute.

Finally, Amendments 139M to 139T are largely technical drafting improvements, most of which arose from our discussions with the Charity Commission. I beg to move.

The Lord Bishop of Hereford: My Lords, I will simply thank the Minister-and her officials, who have been in negotiation with the National Society-for the clarification that she has given.

Amendment 139H agreed.

Amendments 139K to 139T

Moved by Baroness Garden of Frognal

139K: Schedule 14, page 103, line 10, after "land" insert "to which this paragraph applies"

139L: Schedule 14, page 103, line 14, after "land" insert "to which this paragraph applies"

139M: Schedule 14, page 103, line 21, after "land" insert "(subject to sub-paragraph (6))"

139N: Schedule 14, page 103, line 24, at end insert-

"(6) Where the land is vested in the official custodian for charities in trust for a charity, a notice under sub-paragraph (4) must be served-

(a) on the charity, if the charity is a corporate charity;

(b) on the persons having the general control and management of the administration of the charity, in any other case."

139P: Schedule 14, page 103, line 27, leave out from beginning to end of line 30 and insert-

"(a) an educational institution ceases to be an Academy, and

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(b) immediately before it does so, publicly funded land is held by a person for the purposes of the Academy."

139Q: Schedule 14, page 103, line 31, leave out "(1)(b)" and insert "(1)(a)"

139R: Schedule 14, page 113, line 8, at end insert-

" Section 482 of EA 1996 (Academies) is repealed."

139S: Schedule 14, page 113, line 38, at end insert-

" In section 65 of EA 2002 (Academies), omit subsection (1)."

139T: Schedule 14, page 113, line 38, at end insert-

" (1) Section 12 of AA 2010 (charitable status of Academy proprietors etc) is amended as follows.

(2) After subsection (1) insert-

"(1A) In the definition of "trust corporation" in the provisions listed in subsection (1B), the reference to a corporation appointed by the court in any particular case to be a trustee includes a reference to a qualifying Academy proprietor.

(1B) The provisions are-

(a) section 117(1)(xxx) of the Settled Land Act 1925;

(b) paragraph (18) of section 68(1) of the Trustee Act 1925;

(c) section 205(1)(xxviii) of the Law of Property Act 1925;

(d) section 55(1)(xxvi) of the Administration of Estates Act 1925;

(e) section 128 of the Senior Courts Act 1981."

(3) In the heading, after "charitable" insert "and trust corporation"."

Amendments 139K to 139T agreed.

Schedule 14, as amended, agreed.

Clause 62 agreed.

Amendments 140 and 141 not moved.

Amendment 142

Moved by Lord Lucas

142: After Clause 62, insert the following new Clause-

"Distance learning at Academies

(1) An Academy may admit pupils on the basis that they will receive all or part of their education otherwise than on the premises of the school.

(2) If an Academy admits such pupils, it may arrange for all or part of their education to be provided through distance learning packages without any teacher present, or by the pupil's parents or other volunteers similarly.

(3) The Academy remains in all respects responsible for the educational outcomes of such pupils."

Lord Lucas: My Lords, I think that we should take the opportunity of the freedoms afforded by the move to an academy education to explore ways in which we can reach some parts of the education system that have been left fallow by the current rather less imaginative arrangements. I am thinking of some elements of home education that would benefit very much from having partial access to school. I am thinking of prisoners and Travellers and I am thinking of others who, for one reason or another, find it hard to attend a mainstream school on a standard basis.

There are such schools around. There are schools that are purely internet based. I am thinking of InterHigh, but there are certain others. There are schools in the state system, including one recent free school which is prepared to make arrangements with local home schools

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so that pupils can attend school some days a week. As far as I know there is nothing along these lines in prisons and young offender institutions, but it would be a very good innovation to start getting real schools into those institutions and allowing pupils to interact with real schooling rather than the cut-down version provided in prisons. Indeed it would allow them to continue being educated at the schools they have left behind, if that were appropriate.

Travellers could get into a situation where they could have a relationship with one school rather than having to switch school every time they move site. There is no reason why these people cannot be visited and looked after. The Travellers Education Service does a very good job and there is no reason why that cannot continue in terms of human contact. Allowing academies to explore ways in which they can look after these rather low volume and eccentric demands provides a way for small rural schools to flourish. That has been the motivation, by and large, for looking after home schoolers. It allows small rural schools to draw in a rather wider, larger number of people, to address a local need on a more widespread basis, and to allow village schools to continue, whereas otherwise they might not.

This is the sort of freedom that we should be encouraging and of which we should take advantage. We should never lose sight of the need for quality and proper control, but we should take advantage of the liberties we are looking at in terms of academies, to address these small but, none the less, interesting and worthwhile problems. I beg to move.

Baroness Morris of Yardley: My Lords, this is an interesting amendment. It is certainly worthy of discussion and perhaps of support when the vote comes at some later point.

I have a couple of questions. Why only academies? I think that this is quite interesting for all schools and I am not sure why the amendment should restrict it to academies. My feeling is that there are initiatives like this already. I can think of an online school based in Birmingham, and I think in other areas, where children who have been excluded from school or just do not turn up-the school refuses to take them-are now educated online and are not based in school. If my memory serves me right, the legislation on Travellers means that children can stay on a school's register even when they are travelling, and the Travellers Education Service would then aim to keep in touch with them.

My point is really that the beginnings of this are already happening, and this has been precipitated by the advances in information technology which have helped a great deal. I have no problem with a debate that furthers that. You need very strong boundaries so that children are not denied opportunities by somebody who does not have their best welfare at heart, and that would have to be discussed.

For the purpose of this debate, I invite the noble Lord, when he responds-or he may want to intervene now-to explain why he would restrict this to academies and not to any school in the system.

Lord Lucas: Just to fit in with the Bill.

14 Sep 2011 : Column GC263

6.15 pm

Baroness Morris of Yardley: It seems that we have two sets of legislation, one for academies and one for everyone else. Such duplication is probably the biggest cause of further legislation than anything else. We duplicate everything. In this case we have one set of legislation for academies and one for the community schools. If we go ahead with this, we shall follow the Government's normal practice of duplicating legislation at the appropriate point. That seems to me an absolute waste of time, but that is another issue.

Lord Elton: I warmly endorse my noble friend's idea. The measure could be extremely fruitful, particularly given the circumstances of Travellers, to whom reference has already been made, but for many others as well. However, it is likely to miss the trend of this Bill, unfortunately, as it is not sufficiently involved. Therefore, I hope that he will take the opportunity between now and Report to provide an order-making power for the provisions that may need to be made; for instance, for examinations, which students cannot undertake at a distance unless they are supervised at some central point, in a way that, for instance, the City & Guilds is accustomed to organising. I hope that the Minister will have an open mind on this and that the amendment that eventually emerges will facilitate the development of this measure before we reach Third Reading.

Baroness Walmsley: My Lords, during the Recess I read a book about the lives of crofters in the Western Isles of Scotland during the 1940s, 1950s and 1960s. Children had to leave the parental home in order to go to school with the result that families were broken up and teenagers were not supervised by their parents and received much less adequate care and supervision. For children in those situations this idea could have considerable value. I agree with the noble Baroness, Lady Morris, that there is no reason why this sort of service should not be provided by schools other than academies in appropriate situations. However, I understand why my noble friend Lord Lucas tabled the amendment to this Bill. I am not sure whether legislation is required. Perhaps the Minister will explain the situation in that regard. We must take advantage of what technology can offer to ensure that certain children can get as good an education as any other child-provided that the proper safeguards and protections are in place-without having to split up families.

Baroness Garden of Frognal: My Lords, my noble friend Lord Lucas has spoken persuasively on this occasion of the merits of cyberlearning. We thank him for sharing that range of evidence and experience with the Committee. There is no doubt that this is an area of growing relevance, importance and potential. I am pleased to say that academies already have significant freedom about how they organise the education they deliver to best meet the needs of their students. This includes the use of distance and online learning where that is appropriate. Indeed, I understand that schools in this country increasingly provide services of this kind to deliver greater choice of subjects and teaching methods for pupils. That is clearly a good thing. It can also clearly be valuable for online teaching services to

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be available for pupils who are unable to attend school regularly, such as those groups which my noble friend Lord Lucas and Lady Walmsley have mentioned, which would, of course, include Gypsy and Traveller pupils, whom we discussed earlier this week, those who have been excluded or those in hospital, young offender institutions or prisons. Again, academies already have the freedom to provide such services for their pupils and maintained schools will have similar freedoms to do so. I assure the noble Baroness, Lady Morris, that these freedoms will be available for maintained schools as well as academies.

We think that the noble Lord's amendment goes a little too far in providing for the absence of a teacher. We think that the role of the teacher is crucial to the quality of provision to ensure coherence of the overall educational experience for the pupil. There remains an important role for an experienced professional and for a personal relationship between teacher and pupil. In the Government's view, distance education of the kind described in the amendment, without the presence of a teacher at any time, represents a risk to pupil outcomes and educational experience.

Baroness Morris of Yardley: On a point of clarification, and drawing together two debates that we have had this evening, if a school were to open as a free school, would that not mean that it would not need a teacher?

Baroness Garden of Frognal: Free schools still need teachers.

Baroness Morris of Yardley: Not qualified teachers.

Baroness Garden of Frognal: No, but they still need teachers. You are quite right: they do not need qualified teachers, but they need teachers who help to communicate and teach subjects to pupils.

In conclusion, we believe that much of what my noble friend intends is already possible and is already happening. To the extent that it is not, I would ask him to recognise the value that a good teacher can add to the educational experience of a pupil. We recognise that there is a growing place for technology, alternative teaching and learning provisions. Many of us will remember, with gratitude, the impact of inspirational teachers during our own education and the difference that that personal motivation and contact made to our enthusiasm about learning. On that basis, I hope that my noble friend has been reassured that those freedoms already exist and that we may not need to return to this on Report. Therefore, I urge him to withdraw his amendment.

Lord Lucas: I am very encouraged by what the noble Baroness says about all this being possible. I am also very pleased about what she said on the role of the church. I entirely agree with her. I hope that she will have a chance to pass that news on to the prison education service which appears determined to eliminate teachers and do it all online. Doubtless, I will come back to her or, I suspect, to my noble friend, on the subject of funding, which has arisen from time to time. The complexity of the guidance offered by this otherwise excellent department confuses local authorities from

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time to time and certainly schools as to whether particular arrangements qualify for funding and, if so, on what basis. To take a particular example, if a home-educated child wishes to go to a further education college at the age of 14, they can get no funding for that. Perhaps that is something to be followed up by letter rather than in this forum. I beg leave to withdraw the amendment.

Amendment 142 withdrawn.

Clause 63 agreed.

Schedule 15 agreed.

Clauses 64 and 65 agreed.

Schedule 16 : Abolition of the YPLA: consequential amendments

Amendment 142A

Moved by Lord Hill of Oareford

142A: Schedule 16, page 115, line 34, at end insert-

"Value Added Tax Act 1994

(4) Group 6 of Part 2 of Schedule 9 to the Value Added Tax Act 1994 (exemptions: education) is amended as follows.

(5) In item 5A-

(a) omit paragraph (a);

(b) in paragraph (b), for "that Act" substitute "the Apprenticeships, Skills, Children and Learning Act 2009".

(6) After item 5A insert-

"5B The provision of education or vocational training and the supply, by the person providing that education or training, of any goods or services essential to that provision, to persons who are-

(a) aged under 19,

(b) aged 19 or over, in respect of education or training begun by them when they were aged under 19,

(c) aged 19 or over but under 25 and subject to learning difficulty assessment, or

(d) aged 25 or over, in respect of education or training begun by them when they were within paragraph (c),

to the extent that the consideration payable is ultimately a charge to funds provided by the Secretary of State."

(7) In note (5A), for "item 5A" substitute "items 5A and 5B".

(8) After note (5A) insert-

"(5B) In item 5B, "subject to learning difficulty assessment" has the same meaning as in the Education Act 1996.""

Lord Hill of Oareford: My Lords, in a moment we shall come to a discussion about the abolition of the YPLA on which we shall have a broader conversation. First, I shall deal with minor Amendment 142A to Schedule 16, which is the final consequential amendment to primary legislation that is required as a result of the proposed abolition of the YPLA. I have written explaining the detail of it. At present, the Value Added Tax Act 1994 exempts from VAT any education and training for 16 to 19 year-olds that is funded by the YPLA. A VAT exemption also applies to any goods or services essential to that provision. This amendment ensures that the VAT exemption continues to apply when the Secretary of State assumes responsibility for the funding in April 2012. The amendment does not make any

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changes to the education, training, goods or services that will be exempt from VAT. It simply amends the VAT Act to reflect that the source of the funding is changing. I beg to move.

Baroness Walmsley: I have Amendment 143 in this group. First, I thank the Minister for his letter to me dated 5 September about this matter. I suspect that it may well have been copied to most Members of the Committee. He explained the Government's rationale for moving YPLA, Partnerships for Schools and the Department of Education's distributing role of funding local authorities for primary and secondary schools and bringing them together in the education funding agency, which will be responsible to Ministers, and Ministers will be accountable for its operation. It would make sense if it becomes more efficient than the current system, but it is particularly important that we do not lose the progress that has been made over the short life of the YPLA. It is a great compliment to the YPLA that the Association of Colleges has written to me and has asked the noble Earl, Lord Listowel, and me to lay this amendment. It feels that, in its short life, the YPLA has communicated very effectively with the providers of post-16 education and has made sure that the voices of college leaders, principals and so on have been heard on its board, as well as the voice of schools.

The Association of Colleges feels that the chief executive and the chair of the YPLA have very quickly opened and maintained a very effective dialogue. My noble friends on these Benches and I can vouch for that because it has also had a dialogue with us. I am sure that other political groups have had the same dialogue. It is important that the proposed changes do not threaten that progress or stifle the open communication of views of the sector with those who are providing and distributing the funding.

There is a little fear out there that the new education funding agency, working within government, will become disconnected from the post-16 education sector. We hope that giving the Secretary of State the power to set up an advisory board with the structure as laid out in the amendment would prevent that happening. I am very pleased to tell those Members of the Committee who have not seen the letter from the Minister that its last paragraph states:

"I can see that there is a case for establishing an expert group, drawn from its customer base, to advise the new Agency on its operation. I have asked the chairs of the YPLA and Partnerships for Schools for their advice on this matter; that is due very shortly and I expect to be in a position to confirm our intentions later in the autumn".

I am most grateful to the Minister for that and I wonder whether in his response he will elaborate on whether he feels that this advice will lead to the establishment of such an advisory board and whether he feels that it needs to be in legislation or should just be at the discretion of the Secretary of State. On the whole, those of us who want to ensure that that communication continues and that that expert advice is always available would like to see it in legislation.

Baroness Howe of Idlicote: My Lords, first, I give the apologies of the noble Lord, Lord Ramsbotham, who sadly cannot be with us at this moment. I thank

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the Minister for the letter that he wrote to the noble Lord, Lord Ramsbotham, and me about the abolition of the Young Person's Learning Agency for England because both of us were very concerned about teaching within prisons and the importance of teaching taking priority among those young people who we know have much more ability than has ever come to the fore and very much needs developing.

I shall slightly push the Minister on an issue about which I feel quite strongly. When the education side of things was still within the power of the governor, if he happened not to be keen on education, he could dismiss all this and keep the young prisoner doing other activities and not concentrating on education. I would like to be reassured that in any set-up, including in the new education funding agency, which we have been told will have the advantage of having many YPLA members as part of it, there will be a real effort to ensure that proper attention is paid to young prisoners and that they are given the back-up to help their rehabilitation when they come out of prison. All this is part of a crucial way of seeing that reoffending does not continue in the cycle that we have seen for so many years. I hope that the Minister will be able to reassure me on those points.

6.30 pm

Lord Hill of Oareford: My Lords, my noble friend set out the reasons very clearly for bringing together the functions of the YPLA with Partnership for Schools and the DfE, to give us a new education funding agency from next April that will be a single body responsible for funding. As she said, it will be an executive agency of the department, which will make clear that Ministers are responsible for the success of its operation. We do not need legislation to create the new agency or to close Partnership for Schools, which is a limited company. However, the YPLA is a statutory body and closing it requires repeal of the provisions of the ASCL Act 2009.

My noble friend's amendments seek to establish a panel of experts to advise on matters relating to education and training for young people. I know how helpful the YPLA has found its current board. It very much values the contributions that have been made, and I am not at all surprised by the comments that the AoC has made to my noble friend because there is a widely held view about those contributions. I have been fortunate enough to work with the board and am very grateful for the work that it has done. As we work to set up the new education funding agency, we are giving careful thought to how we could benefit from advice of that kind in the new arrangements that we will have. As I said in my letter, we are being helped by the chairmen of the YPLA and Partnership for Schools, Les Walton and Mike Grabiner. I hope that, later in the autumn, we will make clear the precise way in which we can do that.

The amendments propose an advisory board whose remit will be wider than the funding matters that are the principal focus of the education funding agency. It is certainly the case that Ministers and officials have long benefited from advice from all parts of the education sector to inform policy-making. The Learner Support

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Consultative Forum, which advises on financial support for 16 to 19 year-olds and adult learners, will continue to play a key role in advising on the operation of both the new bursary scheme and other learner support programmes. We have in place other arrangements, including standing advisory groups and formal consultation exercises, which enable others to contribute. As well as drawing on the expert advice to which my noble friend referred, there are a number of ways in which we will be able to address concerns.

The noble Baroness asked whether our preference would be for legislative or non-legislative means. Given that the new agency will be non-statutory, our view is that any advisory group should also be non-statutory. We will come back to that question later.

I say to the noble Baroness, Lady Howe, that I know very well the strength of feeling that she and the noble Lord, Lord Ramsbotham, have, and the work that they do, in this area. We discussed on Monday alternative provision and pupil referral units. There is an awful conveyor belt that takes too many children from illiteracy to pupil referral units, young offender institutions and prison, and then back to prison. I agree with her about the importance of trying to stop that process. That is why at one end we are reforming the education system with the emphasis on literacy and numeracy, and measures to help teachers tackle poor behaviour and set boundaries. We hope that that will start to tackle the problem at source. However, I recognise that we have to tackle the problem from the other end, too.

The Ministry of Justice and the Youth Justice Board have launched a consultation on the strategy for the secure estate for young offenders. It makes clear that the provision of high quality education and training is a vital component of the rehabilitation process and should be part of trying to help young offenders to turn away from crime and lead more fulfilling lives.

As the noble Baroness, Lady Howe, will know, the YPLA currently manages the contracts for the education of young offenders on behalf of the Ministry of Justice. By and large we think that those contracts operate well, but I have agreed with the Prisons Minister that the responsibility for managing those contracts should pass to the education funding agency next April when the YPLA is dissolved. Because the new agency's staff will come largely from the YPLA, we think that they will have the capacity and expertise to fulfil its responsibilities.

However, that is an interim arrangement and the Ministry of Justice is considering the arrangements in the long term. I know that the noble Baroness, Lady Howe, with the noble Lord, Lord Ramsbotham, met the Ministry of Justice earlier in the summer. I am glad that she did so and hope that she will continue to talk to the Ministry of Justice, which is the lead department on the educational side, as we go forward. I, too, am keen to talk to her about that. That is where we are on the replacement arrangements for the YPLA. With that, I hope that my noble friend will feel able to accept my reassurance.

Amendment 142A agreed.

Schedule 16, as amended, agreed.

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Clause 66 agreed.

Amendments 143 to 144A not moved.

Schedule 17 agreed.

Clause 67 : The apprenticeship offer

Amendment 144AA

Moved by Lord Young of Norwood Green

144AA: Clause 67, page 53, line 11, at end insert-

"(13) In addition to the above, the Secretary of State will make available the apprenticeship offer and will ensure that progress is made to ensure the offer is available to all qualified persons by 2015."

Lord Young of Norwood Green: My Lords, I shall speak also to Amendments 144AB and 144AC, and give an indication of my view on Amendment 144B in the name of my noble friend Lord Layard.

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