I shall speak also to Amendment 167. Amendment 161 is jointly in the name of my noble friend Lady Walmsley, and Amendment 167 is jointly in the names of my noble friends Lady Walmsley and Lady Williams of Crosby, and the noble Baroness, Lady Howe of Idlicote.
As my noble friend the Minister referred to Baldric, I think that he will sympathise if I say that Clause 8 could have been drafted by Monty Python himself. It is a dog’s dinner. Quite why we have to have this new definition of "academy proprietors" when the first five clauses make no reference to academy proprietors and they make only a desultory appearance in Clause 6 and a latter-day appearance in Clause 7, I do not quite know. It does not seem to me to be worth its presence in the Bill, which is complicated enough already.
I shall briefly deal with Amendment 161. I am a little shy about proposing it at 11 o’clock at night, but I shall nevertheless do so briefly. The use of the word "proprietor" is unhappy, given that all these academies can only be charities and that the word "proprietor" has an almost aggressively private ring about it, a ring of ownership. If you look up the definition, all its resonances and ring are about personal, private ownership. I am not expecting the Minister to make any concession on this tonight, but if he reflects on this and thinks that the word "operator" would be more in tune with the culture of the Bill, so much the better. The language of Bills can often be quite important in the way they are understood by the public afterwards.
I turn to the heart of this group: Amendment 167. It deletes subsection (4) of Clause 8 which states that all academy proprietors—to use the language of the clause—shall be exempt charities. I know that my noble friend Lord Hodgson of Astley Abbotts will argue in the next group along the lines that I now do—it is nice to be in harness with him again and to see the noble Lord, Lord Bassam, o’er yonder because we battled it out for a year over the Charities Bill in 2006. The question of who regulates this new breed of schools is vital. I am entirely happy that the Bill makes clear that all these academies are to be charities—indeed I would have been frantic if it had not.
However, as we in this House know only too well, charities are both highly privileged entities in the national legal fauna and have very considerable tax and other advantages over any other sort of legal animal. Because of that and their ancient nature, and because they are at the heart of civic society and our wonderful voluntary movement, they need to be and, indeed, are specially regulated. It is also fair to say that the law of charity is very particular and complex and requires more judgment on the part of those who apply it than most other parts of our law. It is no accident that the Charity Commission was established in the first half of the 19th century and has maintained to this day its pre-eminent—indeed, almost absolutist—role with regard to the oversight of charity activity and, starting at the beginning, of charity registration.
Therefore, it was with some alarm that I read the Bill and saw that academies were to be exempt charities because, as many Members of your Lordships' House will know, that means that they are taken out of Charity Commission regulation. It is particularly odd on two grounds. First, schools and other educational establishments used to be regulated by what was then called the Department for Education and Science, but that special possession was taken from it and put back into the responsibility of the Charity Commission many years ago.
The second oddity is that existing academies are subject to the regulation of the Charity Commission. I understand that there was a little brouhaha when at first it was suggested that the regulation should not be with the Charity Commission, but that was overcome and the academies remain subject to the oversight and regulation of the Charity Commission. It is worth pointing out that the DCSF, in its guidance to academy schools which it issued less than a year ago, makes very plain why the Charity Commission rather than anyone else is to regulate them. The reason is principally to ensure that academies that are charities must remain charities with the essential attribute of charitable status, which is independence, above all things.
Although the Government will rightly claim that one of the great virtues of the new wave of academies is to be more independent—I do not for a minute suggest that my noble friend the Minister has any other thoughts in his mind—sometimes things can occur that are not intended when one is legislating, and we must be absolutely sure that the independence of new academies, over and against local education authorities for example, is not replaced by subservience to the Government of the day. That is the principal benefaction, if I can use that word, of charitable status, which is why the Charity Commission goes to great lengths to ensure that academy schools are properly independent of government.
The Government say in their guidance that the agreement must be reached after, ""arm’s-length negotiations with the governmental authority","
and that the trustees of an academy school must not, ""commit themselves simply to giving effect to the policies and wishes of the governmental authority"."
Finally, the trustees cannot agree to allow the governmental authority, ""to decide who is to benefit and in what way … However … it is possible for trustees to accept funding from a governmental authority on terms that are quite prescriptive"."
That gives you a flavour of this long document.
My amendment, which is supported by my noble friends, would bring the regulation back into the hands of the Charity Commission. I do not seek that for any other reason than that it has the experience and expertise to do this job not only better than any other regulating authority but, dare I say it, with less bureaucratic stumbling than might be the case if the regulation were moved to—what is it called these days? Is it still the DCSF?
Academies Bill [HL]
Proceeding contribution from
Lord Phillips of Sudbury
(Liberal Democrat)
in the House of Lords on Monday, 28 June 2010.
It occurred during Committee of the Whole House (HL)
and
Debate on bills on Academies Bill [HL].
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2010-12
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