Schools Bill [HL]

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 22nd June 2022 Lords Chamber

[Lord Storey (LD)]

I was slightly diverted there. I am going to be very brief. I am diverted because—is Amendment 123 in this group? Yes, it is.

I will perhaps ask the Minister a question. Any teacher who is teaching children in a school has to have disclosure and barring clearance. Regarding the practice—and I do not complain about this—where some home educators use teachers either to teach their own children, not all the time but occasionally, and maybe a group of children, presumably those teachers have to also have safeguarding qualifications. What I am trying to say in this amendment is that there are cases—and this actually was raised with me by some home educators—where, for example, and I think this is very good practice, the children will meet other adults who are not qualified teachers but have particular expertise in a particular area to instruct or teach their children. What this amendment seeks is to ensure that those adults also have safeguarding clearance. I do not know what the current situation is on that.

I also want to respond to the point in Amendment 129, which my noble friend Lord Addington signed. This is the issue which I still struggle with. For those pupils who are permanently excluded from school—and in the vast majority of cases they are young people with special educational needs—if there is not a pupil referral unit on the site of the school, they get moved to an alternative provider. As we have discussed, I think in Written and Oral Questions, many local authorities, often because there is a shortage of places or because they have not got the money, look for the cheapest provider. I had a meeting yesterday with Ofsted, which told me—I was absolutely horrified by this—that one unregistered provider charges £50 a day plus taxi fares, including the £50, almost just to look after that child. That child could have special educational needs, so this cannot be allowed to go on. We need to take a firm hand. I am sort of having a second go at this, because I was chairing the session today at the All-Party Parliamentary Group for Education. The Minister on special educational needs spoke about this and I was very reassured, but hoped I could be reassured from our Minister on this issue as well. Other than that, that is all I want to say.

[Baroness Chapman of Darlington (Lab)]

I do not want to repeat much of the good stuff that has been said, but I shall just mention our Amendment 128, which amends Clause 48 on sharing data between local authorities when a child moves. We are just pointing out that we must have regard to child protection and the safety of their parents when this is done. We are concerned that, where there are circumstances in which a parent is moving as a consequence of domestic violence or is a victim of or witness to crime, that they are protected. To be absolutely clear, we want to make sure that information can be shared, and that it can be shared safely and quickly.

On Amendment 129, about the support provided by local authorities to children with special needs or disabilities, we are very interested in supporting this. We take the points raised on time limits and school days and would be sympathetic to any reasonable amendments along these lines at Report.

[Baroness Barran (Con)]

My Lords, I turn to the second group of amendments, starting with Amendment 128A, in the name of my noble friend Lord Lucas. I would remind the House that the law is already clear that parents have a right to educate their children at home. The Government continue to support this where it is done in the best interests of the child. Our guidance on home education for local authorities is clear that elective home education, of itself, is not an inherent safeguarding risk, and local authorities should not treat it as such. We are also aware that there are a number of reasons why parents may choose elective home education. Sometimes, as your Lordships have already raised this afternoon, this may not be their choice, for example due to off-rolling, which is why we believe it would be valuable to require the recording of reasons for home education, so we can identify some of the wider system issues which my noble friend rightly points to in his amendment.

On Amendment 128, from the noble Baroness, Lady Chapman, the information held in registers will of course be protected under UK GDPR, like any other data, and the Bill only enables data to be shared with prescribed partners where the local authority feels that it is appropriate and proportionate to promote the education, safety and welfare of children. I am very familiar with the issues that she raises in relation to domestic abuse and just how devious some people can be in trying to track down a former partner, which is why that proportionality of risk is so important.

I would like to thank again my noble friend Lord Lucas, the right reverend Prelate the Bishop of St. Albans and the noble Baroness, Lady Garden of Frognal, for Amendments 114A through to 119. We believe that the timeframe of 15 days in which parents or out-of-school providers must provide information for a local authority register strikes the right balance between minimising the amount of time a child would spend in potentially unsuitable education and allowing sufficient time to send the required information. In addition, defining the period in terms of “school days” would, we believe, be an inappropriate and impractical measurement for home-educated children who, as we heard in the debate, by definition do not necessarily follow a school calendar. But I think the issue with the timings and those proposed by my noble friend in later amendments on the school attendance order process is that, if you take them all together, it would more than double the length of time that a child would be without suitable education. It would take the total number of days to 120, instead of 51 on the Government’s proposed process. I think that is the way I would ask your Lordships to think about it. Each individual step may look tight to some of your Lordships, and to some home educators and proprietors of education institutions, but when we look at it in the round, the fact that a child could be in unsuitable education for 120 days, versus 51, is the point I would ask your Lordships to reflect on.

The noble Baroness, Lady Garden of Frognal, proposed Amendment 126. The monetary penalty for failing to provide information, contained in the new Section 436E, only applies to persons who provide out-of-school education to children without their parents being present. Parents who fail in their duty to provide information, or who provide false information, for the register would not be subject to any financial penalty. Rather, as I mentioned earlier, the local authority will be required then to initiate the process of finding out whether a child is receiving suitable education. That is obviously the central point of their inquiry. If they find that a child is not receiving this, then it could lead to a school attendance order. And if that attendance order is not complied with, it could eventually result in a fine being imposed, but only if the parent convinces neither the local authority nor the magistrates’ court that their child is being suitably educated.

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[Lord Storey (LD)]

I was not going to speak on this group, but I am now. My noble friend Lady Brinton is right: the tone is really important; we underlined that in previous debates.

I am very nervous that we said right at the beginning—I think there was agreement across the Committee—that this was about protecting the vulnerable and ensuring the rights of children. I guess that all noble Lords here have been bombarded with emails from home educators, and we must be careful that we do not believe everything that they tell us. As the noble Baroness, Lady Kennedy, was talking, I received an email giving a completely different view about how some home educators are suing one other over what they said; some are being told to be quiet. The noble Baroness mentioned a couple of organisations, but, for some people, there is more at stake here. We must remember—I repeat this—that the vast majority of home educators are doing a fantastic job; they want support and to work together. If we ramp up the fear that they will be threatened, they will feel threatened. We should try to ensure that they completely understand what we are trying to do to support them and their child.

[Baroness Chapman of Darlington (Lab)]

My Lords, we are respectful of the right of parents to educate their children at home, but we cannot agree that this clause should not be part of the Bill. There are clearly important measures that we support quite strongly and want to see enacted. We support the principle of a register. However, there have been some helpful suggestions for improvement—particularly on new Sections 436C and 436D(2), inserted by Clause 48—and the Minister has committed to go away and consider those further.

On the issues around data we raised in relation to Amendment 128 in an earlier group, having thought about what the Minister said and the issues raised by the noble Baroness, Lady Kennedy, and other noble Lords, I think it is worth some further consideration, because clearly there are risks and we would not want to rush into anything that would cause more problems. We hope that, with some improvements, this clause will be a helpful and necessary change that will safeguard children. It is not about forcing children back into school; it is about balance between freedom to decide and safeguarding.

On the comments that we have just heard from my noble friend, this Bill is not ready for Report. We do not think that the Government will have time to reconsider some of the issues that have been raised. It would seem appropriate, given everything that has been said, for us at least to wait for the regulatory review to be completed before we take this Bill to Report.

[Baroness Penn (Con)]

My Lords, I thank the noble Baroness, Lady Kennedy, for giving us the opportunity again to ensure that the tone we take when talking about this issue—as the noble Lord, Lord Storey, and many other noble Lords in this debate have said—is one of support, of explaining what the Government are seeking to achieve with these measures and of trying to allay some the concerns we have heard, while being clear that we do not lose sight of the importance of protecting a child’s right to education. In doing so, I can reassure the noble Baroness, Lady Kennedy, that the introduction of registers is not, in any way, intended to undermine or interfere with the parents’ right to educate their child how they choose. This clause includes no measures on monitoring or assessing the education that parents may be providing. Local authorities’ existing powers are already sufficient in this regard, and we have already provided guidance to support local authorities to determine whether education is suitable.

As many noble Lords have said, we know that many parents who home educate do it very well—often to a very high standard and in challenging circumstances. However, that is not the case for all. That is a key point I would like to emphasise: this Bill is about establishing registers so that we know who and where home-educated children are; it is not about forcing them back to school.

A school attendance order can be issued only if the local authority is not satisfied that the education provided for the child is suitable. The example raised by the noble Baroness, Lady Kennedy, of the little boy thriving at home with his new adopted family is clearly a case where the home education being provided is suitable and, if demonstrated as she described, the local authority could only agree with that. Similarly, on her example of a girl in year 1 who developed seizures, if the education being provided at home is suitable—and that is demonstrated to the local authority—the local authority could not reasonably issue a school attendance order. In addition, the current law, supported by guidance, already requires local authorities to take all relevant factors into account when taking a view on whether it is expedient for a child to attend school, including any medical grounds.

I turn now to the noble Baroness’s question about parents needing local authorities’ consent to home educate. I can reassure the noble Baroness that condition C in new Section 436B simply does not do that; it establishes that a home-educated child is eligible to be included on the local authority’s register. That is a statement of fact; there is nothing about consent involved in new Section 436B.

As we heard in an earlier debate, we must recognise that there are growing numbers of children not in school, particularly after the pandemic, and there are concerns that some of these children will not be receiving suitable education—and, in some cases, not at all. We need to be able to assure ourselves that they are receiving a suitable education, and that is what these provisions are all about. While parents of eligible children will be required to provide information to local authorities for inclusion on their registers, local authorities will be able to require only that information which is prescribed in legislation. Any additional information prescribed will be intended to support the promotion of the education, welfare or safety of children.

I have also heard the concerns about data sharing—which was raised not just in this group—and was sorry to hear about the specific situation the noble Baroness described; that absolutely should not have occurred. As my noble friend the Minister has explained, there will be protections in place: the clause allows local authorities to share information only with certain prescribed persons, to be set out in regulations, when they consider it appropriate for the purposes of ensuring the safety, welfare or education of a child—

[Baroness Chapman of Darlington (Lab)]

There is quite deep concern about this issue, and I wonder whether the regulations could be made available to us before Report.

[Baroness Penn (Con)]

I can absolutely take that point away and see whether it is possible. If that is not the mechanism by which we can provide further detail and assurance, I will look at what else we can do to explore, and reassure on, that issue further.

As my noble friend the Minister said, under UK GDPR, parents have the right to object to any processing where UK legislation requires such processing, which would include the sharing of information to prescribed persons. The organisation responsible for that processing would then need to review the request and decide whether the processing is in the best interest of the child or family, and either uphold the request in the specific circumstances or proceed with the processing. The parent also has a formal route of complaint with the Information Commissioner’s Office, which has a range of powers in this area. It is essential, however, for local authorities to be able to share information, if needed, to support multi-agency safeguarding and education efforts, with the appropriate safeguards in place.

On the question of statutory guidance, which the noble Baroness asked about also, this will help ensure the consistency of interpretation and implementation of duties across local authorities. As we said, we will ensure that it is created in close collaboration with local authorities and home educators, and includes advice on how local authorities can best promote positive engagement, as we have heard the concerns from parents where that has not been the case. We have also heard examples of best practice, and that is what we will seek to draw on in drafting the guidance.

There was a concern about financial penalties for tutors or childminders and home education groups. The duty on providers to share information on request will be important in helping to identify those children who are not—but should be—on registers, and those regulations will be used to set a threshold at which an education provider comes into the scope of the duty in Section 436E, ensuring the duty is only placed on providers that provide a substantial proportion of an eligible child’s education. There is also the power to make regulations to create specific exemptions to this duty, and we have indicated our intention to use that power to exclude informal groups of home-educating parents from the scope of this measure.

I thank the noble Baroness once again for the opportunity to reiterate some of those points, and I think we have heard the areas that the Government will take away and look at to ensure that we continue to have a message for support for home educators, but not lose sight of the importance of what we are trying to achieve with these registers.

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[Baroness Chapman of Darlington (Lab)]

I do not want to detain the Committee either, but my ears also pricked up at the question of six months or 12 months. I was part of the Bill Committee when we agreed that magistrates should have the power to hand down sentences of up to a year. This is a slightly odd one; I do not think I have ever seen an offence drafted quite like this, especially given the journey that people would go on to be subject to these orders. I absolutely accept that, for a situation to get this point, the circumstances would be extremely unusual. If you need to send a parent to prison for a year for failing to get their child to school, there is a lot more going on. There will probably have been multiple interventions from social services and elsewhere before we ever got to that point. Whether the child would still be in the care of a parent who needed to go to prison for failing to get them to school is an interesting question.

It is usual, I should think, with an offence such as this, for a Minister to explain why a penalty of a year will have any more of a deterrent effect then a penalty of six months, eight months or three months. I know they would be available to a magistrate, but it is unusual to see it done in this way. I do not know whether that is because it is a Bill of the Department for Education, rather than the MoJ, which is perhaps more used to dealing with such clauses. It would be helpful if the Minister said a bit more about this.

I am content that these clauses should stand part of the Bill, but I am sensitive to the concerns of home educators, particularly those who are doing a good job. We do not want them to feel undermined or threatened in any way by this. We can stand here and say “Well, they shouldn’t; there’s no need for them to”, but the fact is that that is how they already feel, so we have a job of work to do to meet them where they are on this. At this point, it would be helpful if the Minister said what she can on that, but we do not want the clauses removed from the Bill.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

I shall speak to Clauses 49, 50 and 51 and Schedule 4, which the noble Baroness, Lady Jones, opposes. She asked me to summarise the purpose of this part of the Bill. The overarching purpose is that we should feel confident that every child in this country is getting a suitable education, that we should offer support to those home-educating parents who feel they need it, and that we should address the very small number of children who are not in school or being suitably educated at home, and who are exposed to a range of risks which we have discussed tonight.

The other point behind the noble Baroness’s very fair question was to ask us about the spirit in which we approach this and how we are doing it. As the noble Baroness, Lady Chapman, said, it does not matter whether we tell parents to think a certain thing: if we feel it, we feel it. I hope that the Committee senses that we acknowledge that. I feel it is our responsibility to try to address those anxieties and put ourselves in the shoes of parents who are worried about the proposals. It is material, in our commitment to develop guidance for local authorities, that we will do that in partnership with local authorities and home-educating parents, so both voices are there. I hope very much that we will reach a good place with them, and that that recap responds to the noble Baroness’s question.

I am afraid that I will have to write to the noble Baronesses, Lady Brinton and Lady Chapman, regarding their questions. My understanding is that we are bringing the offence in this Bill in line with other similar offences, but both noble Baronesses have asked extremely good and detailed questions and I will respond to them in writing.

Clause 49 amends the school attendance order process in England to make an order a more effective measure for parents who are not providing their child with a suitable education, or who fail to demonstrate that they are doing so to local authorities. If a local authority knows that a suitable education is not being provided, or cannot deduce whether it is, it is important that this be acted on quickly to make sure that children get a suitable education as quickly as possible. For this reason, additional timeframes have been introduced and in some existing cases, as the Committee has debated tonight, shortened. We are trying to bring more consistency by aligning the process for and effect of orders for academy schools more closely with that for maintained schools.

Clause 50 similarly seeks to increase the efficiency of the process where a parent fails to comply with a school attendance order in England, and to support the child’s right to education and minimise the amount of time that a child misses education. Today, if a child is registered at a school but their parent keeps them at home without a valid reason, the parent commits an offence and can potentially receive a heavier penalty than if they simply withdraw the child from school completely without providing any education at all and ignore a school attendance order. Equalising the maximum penalties for those two situations removes this perverse incentive to take children out of school without providing suitable home education. These changes are only being made to the school attendance order process in England. Therefore, Clause 51 and Schedule 4 make consequential amendments to help separate the two processes in England and Wales and to ensure they are reflected in relevant legislation such as the Children Act 1989 and the Education Act 1996.

With that explanation, I ask the noble Baroness not to oppose Clause 49, the other clauses and Schedule 4.

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[Lord Berkeley of Knighton (CB)]

My Lords, I want to embellish a couple of points particularly pertinent to the noble Lord, Lord Lucas, and my noble friend Lady Meacher.

Some noble Lords may remember that a few years ago we created care orders in cases of FGM for the family court. What emerged from the research that I did into that was that it was the family units that were espousing FGM but, furthermore, they liked to see themselves as a society—and, in certain cases, belonged to a society—that initiated and believed in female genital mutilation. I make this point because, as the noble Baroness, Lady Meacher, said, it is very easy for a small group of people to move from being a family unit to being accepted possibly as a “school” and thereby having the moral authority to take forward these practices and propagate them. I mention this as a point which we should bear in mind, given what my noble friend Lady Meacher and the noble Lord, Lord Lucas, were warning us about.

[Baroness Chapman of Darlington (Lab)]

The amendment tabled by the noble Baroness, Lady Meacher, is a characteristically sensible suggestion. I hope that the Government are mindful and assure the House that there is no loophole or that an amendment will be used to close it. The amendments tabled by my noble friend Lord Mendelsohn raise similar important issue. The Minister is nodding, so I am sure that she will have something positive to say about this.

The point made by the noble Lord, Lord Storey, about excluded children, is an important one. Maybe we cannot deal with everything in his remarks through this Bill, but I hope that we can attend to those issues that have been around for such a long time. We still see managed moves used far too frequently. It is gaming the system. We know that it goes on. I am sure that when we put in measures to deal with that there will then be another set of behaviours to tackle, but such is life.

On our Amendment 171G, I was very keen to get something in the Bill that has come out of Josh MacAlister’s potentially ground-breaking report. MacAlister’s argument is that in too many places the contribution and voice of education is missing from multi-agency safeguarding conversations. I hear often from partners, usually in health, how difficult it is to engage with schools. Schools want their voices to be heard and to have a statutory role but are unable to do so at the moment. The recommendation from the MacAlister report is that there should be the opportunity that there is in this Bill—well, I am saying that it is an opportunity in this Bill. If we do not take it, I wonder whether when we get the Government’s full response to the MacAlister report we will look back at this and regret that we did not take the opportunity of what is quite a simple recommendation.

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[Lord Lexden (Con)]

My Lords, I will comment briefly, following on from the noble Baroness. As usual in education debates, I declare my interest as a former general secretary of the Independent Schools Council, which accredits and represents some 1,400 schools, and as the current president of the Independent Schools Association, one of the council’s constituent bodies, which has some 580 of those schools in its membership. There is not a household name among them, and none of them is large in size: many have no more than 200 pupils, some less. But all of them are serving their local communities; responding to their parents’ wishes; striving to keep fees down; and fulfilling their charitable purposes, not just by providing education—recognised as a charitable purpose in law for over 400 years—but by delivering wider public benefit through bursaries, partnership projects with local state schools, and participation in local community projects. Because of the lateness of the hour, I will not give further details in full reply to the noble Baroness.

This amendment seems to have been dug out of the Labour Party’s archives.

[Baroness Chapman of Darlington (Lab)]

It has not been dug out of an archive. I expect it to be in our next manifesto, so I expect the noble Lord to have to engage with this on a regular basis.

[Lord Lexden]

I want to give some background, if I may. At the general election of February 1974 the Labour manifesto declared:

“All forms of tax-relief and charitable status for public schools will be withdrawn.”


With some redrafting, “private schools” being substituted for “public schools” for example, this remained the Labour Party’s position during the rest of the 1970s and throughout the 1980s. At the 1992 election, the threat to charitable status disappeared, 30 years later to suddenly come back now, a weary ghost from the past.

What has happened during the last 30 years? Something significant has occurred: schools in the two sectors of education have moved ever closer together. The credit for this, of course, belongs to the schools themselves. They were drawn together by a recognition of the mutual benefits of partnership in so many different areas—in teaching, particularly in specialist subjects, music, drama and sport. Today this large programme of joint work is underpinned by a memorandum of understanding between the Independent Schools Council and the Government. Details are available on the council’s Schools Together website. Extensive though the programme is, there is more to be done. The best thing that everyone who has the interests of education at heart can do is to press independent and state schools to do more together. Noble Lords opposite should perhaps visit some independent schools to see what partnership work they are carrying out with state sector colleagues—that is the word they use, “colleagues”.

When I was at the Independent Schools Council, years ago, I found it quite difficult to interest the Conservative Party in any of this; Tony Blair’s Government was a different matter. Education Ministers, including Charles Clarke and David Miliband, came to the council’s offices for discussions. An official independent/state schools partnership scheme was set up to encourage progress, backed by modest funding from the Department for Education. In 2000, the then Schools Minister wrote that there had been “a huge cultural change”. In January 2001, she wrote: “There are no plans to legislate to remove charitable status from independent schools.” The same Minister got independent schools seats in the General Teaching Council and introduced special fast-track arrangements to help teachers in independent schools get QTS. She referred to them earlier in these debates. Always listen carefully to everything the noble Baroness, Lady Morris of Yardley, says in this House. I am sorry she is not in her place at the moment.

For years, independent schools have used the benefits of their charitable status, and more besides, to give help with fees. Back in 2001, I used to say that for every pound of benefit received, they provided £2.30 in help with fees. What would be the effect of overturning a law that has stood for over 400 years by confiscating the schools’ charitable status? Fees would rise, bursaries would fall, and schools would become more socially exclusive. I think the policy embodied in this amendment should go back to the Labour Party’s archives.

Social Care: Children

Baroness Chapman of Darlington Excerpts

Wednesday 22nd June 2022 Lords Chamber

[Baroness Barran (Con)]

I apologise to the House if that is the impression that I gave. I am happy to write to set out the Government’s position in detail.

[Baroness Chapman of Darlington (Lab)]

My Lords, the report recommends that schools are made a statutory safeguarding partner in the care system, to represent the voice of education in partnership arrangements. Will the Government take advantage of the opportunity that the Schools Bill presents? I recommend the amendment tabled in my name to that end. which would formalise the role that our schools already play, to give them the recognition and voice that they need to do that job effectively.

[Baroness Barran (Con)]

I look forward to debating the noble Baroness’s amendment in detail. We know that schools already play an incredibly important part in safeguarding children and represent an important source of information about whether or not a child is safe. However, I cannot prejudge the final decisions.

British Baccalaureate

Baroness Chapman of Darlington Excerpts

Tuesday 21st June 2022 Lords Chamber

[Baroness Barran (Con)]

My noble friend will be pleased to know that there is such a programme, Now Teach, and that the Government have been active in supporting it.

[Baroness Chapman of Darlington (Lab)]

Last week, the Minister said at the Dispatch Box that it is not government policy to open further grammar schools, yet we read in the papers that new selective schools are on the cards as a way of soothing Tory Back-Benchers. Can the Minister confirm whether what she said last week was correct or whether the department is looking into new grammar schools?

[Baroness Barran (Con)]

I think the noble Baroness has seen from the Schools Bill and from the schools White Paper what our policy is in this matter.

Schools Bill [HL]

Baroness Chapman of Darlington Excerpts

Committee stage & Lords Hansard - Part 2
Monday 20th June 2022 Lords Chamber

[Lord Storey (LD)]

My Lords, the right reverend Prelate the Bishop of St Albans is right that parents should have the right to choose the educator for their children, whether they choose a voluntary aided school, a maintained school or an academy, or to home educate. I would be extremely concerned if they chose an unregistered school which in many cases would fail an Ofsted inspection every day it was inspected because of some of the practices that go on, but we do not know that because we do not have that information.

We probably all agree, including in respect of the amendments that I have put down, that we need to take a chill on this and think it through carefully, because I can see that there are issues here. We need to know what the real information is that we want, and why we want it in the first place. But let us not kid ourselves that it is just about this. For example, parents give all sorts of data when they apply for a school—far more detail than some of the requests that are in this Bill. Voluntary aided schools, for example, will ask the faith of the family. Why do they ask that? In a Catholic-run school, for example, they will have a percentage of children who are non-Roman Catholic who can take up places, and that is why they want that information. I make no comment on whether that is right or wrong.

Believe it or not—and I am not particularly keen on this—individual schools, even primary schools, have informal application forms that parents fill out. I remember only a few years ago that one of the questions on the informal application form was what the occupation of the parent was. There is a whole gamut of information out there and we need to rein some of that in.

My final point is that we must ensure that when we have had this pause and perhaps reflected on what we really want, this data is not retained at the end of a child’s schooling. The notion that the data is retained by schools or local authorities is not very helpful. That would be my concern.

I turn to my Amendment 103. I have never really understood this issue, in the sense that when I was first a head teacher—I was head teacher of two schools—you had to collect a unique pupil number. Why? So that when a child moved to another school, perhaps if they moved house, their parents moved jobs or they just did not like the school they were at, you could know that they were in a secure situation. This was brought in by the Blair Government. I never understood why we did not know how many children were in schools when we had this unique pupil number.

This came home to me when I had a pupil who, for all sorts of reasons, left the school I was at. The local authority contacted me and asked, “What happened to pupil X?”. I said, “Well, his parents told me that he’s gone to this school, and I have contacted the school and given it the unique pupil number”. The school never received the pupil, and nobody knows what happened to the unique pupil number. We have to think through what we really mean by that and how it will work.

If we want to have a proper system, it has to involve us being able to follow the pupil’s education—not in any way spying, but making sure that the pupil is, first, getting educated and, secondly, being safeguarded.

[Baroness Chapman of Darlington (Lab)]

I do not want to rehash everything that has been said. I think that most noble Lords who have spoken support this idea in principle and want to see it work, so I hope the Minister takes what I am about to say in that spirit.

I think that this is really sloppy, particularly when you are talking about something that could lead to imprisonment. I have done a lot of justice Bills, and I do not think I have ever seen anything quite like this where, in new Section 436C(1)(d), parents are asked to provide

“any other information that may be prescribed”,

then, in new subsection (2), the local authority register

“may also contain any other information the local authority consider appropriate.”

That is limitless at that point.

The Bill goes on, in new Section 436D(2)(c), to say that the onus is on the parent to inform the registering authority—the local authority—of any changes to this information, which could be anything, as yet to be decided,

“of which the parent is aware”.

That is vague. Who decides whether the parent should be “aware”? How do you know that the parent is “aware”? That needs to be tidied up.

The Bill goes on to say that, should the parent fail—forgetting whether or not we can evidence whether they were “aware”—to provide something that is totally unspecified in the Bill, they can be fined and there can be an order that their child must attend school; they can decide which school. The parent can also be imprisoned for up to 51 months. I think it is pretty extraordinary that we are being asked to agree to an imprisonable offence—which we might well agree to if this was better drafted—when a parent is being asked to provide information that is unspecified. I do not think that is acceptable.

If the Government want to proceed with this, they need to think hard about new Section 436C in particular, because I can see that causing real problems in court should it need to be interpreted. It would be very helpful if the Government could have a rethink about this or, at the very least, if the Minister could say at the Dispatch Box, maybe this evening, what she thinks a parent who is “aware” looks like, because this will be looked to by a court that wants to understand the intention of this, should it need to. Does that mean a council has written to that parent? Would that be sufficient to then commence this whole series of interventions that could, as I say, lead to the imprisonment of a parent?

It is no good the Minister standing there and saying. “This will hardly ever be used; it will be an exceptional circumstance”, because we are here to consider those circumstances. If that circumstance should be a very rare thing, we need to know the circumstances that would lead to it, rare or not. Being asked to agree to including in the Bill

“any other information that may be prescribed”

is very troubling to us. So we support the idea of a register and want very much to support the Government in what they are trying to do but we cannot just let this matter go, given the slack way in which the legislation is currently drafted.

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, if I may, before turning to the amendments in this group, I shall respond to the request of the noble Baroness, Lady Brinton, that I should clarify my remarks regarding criminalisation. I am happy to do so.

The context in the previous group where this was mentioned related to parents who failed, if I remember correctly, because they were on holiday or away, to provide information in time for their home-educated child to be registered with the local authority. To be clear, there is no criminal sanction for not providing information for registers by parents. The offence mentioned by the noble Baroness is an existing offence: the breaching of a school attendance order. Nothing is being made an offence in this case that is not already an offence. I hope that that clarifies that point.

I turn to this group of amendments, which broadly concern requirements to collect information for the children not in school registers and how this information will be shared.

[Baroness Chapman of Darlington (Lab)]

My Lords, it is fair enough if the Minister is saying that we have misunderstood. That happens. However, the legislation states clearly that a parent who is registered by a local authority under proposed new Section 436B “must”. That sounds to me as if the parent is compelled to do that and, if they do not do so, there will be a penalty. I do not understand what the Minister means when she says that it is not an offence.

[Baroness Barran (Con)]

The example to which I was alluding in my remarks on the previous group was the one whereby parents would be asked to provide information but missed the deadline because they were on holiday and would be criminalised. That is not accurate. Parents who are asked to provide information, who miss the deadline and then provide the information, will not be criminalised.

The general point that I was trying to make in the earlier group was that I felt that language was being used in the Committee about the way in which the Government were approaching the Bill that would be taken at face value by home-educating parents, many of whom, we all agree, are already anxious about this matter. That would not help. Any challenge is absolutely right and proper; I was just requesting that we should do this in a way in which home-educating parents are not alarmed inappropriately.

[Baroness Chapman of Darlington (Lab)]

Nobody wants to alarm anyone unnecessarily, which is why we are trying to get the Bill right, but it states clearly that a person “must” comply with the duty within a period of not less than 15 days. To me, that reads like something that we are compelling people to do and that if they do not, there will be a consequence. I do not want to drag this out further but it is important that we interpret this as something that is being made into an offence. I can see why people are concerned.

[Baroness Barran (Con)]

I understand. However, that would be a civil matter but we will confirm it in writing.

If I may proceed, I thank my noble friend Lord Lucas, the noble Baronesses, Lady Whitaker, Lady Brinton and Lady Garden, and the noble Lords, Lord Storey and Lord Knight of Weymouth, for Amendments 97D, 97E, 102 and 103, which all seek for additional information to be included on the registers. The Bill allows for regulations to be made prescribing details of the means by which a child is being educated and other information that must be included in registers.

The Government have already signalled their intention for certain information to be required for inclusion on the registers via regulations, such as ethnicity, sex and other demographic information. This is in addition to whether a child is electively home educated or receiving their education in other settings. The delegated powers in the Bill would also allow for prescription of further data at a later date, which could include, for example, unique identifying numbers if that were desired.

I turn to Amendments 104 to 109, tabled in the names of the noble Baroness, Lady Jones, my noble friend Lord Lucas, the noble Baroness, Lady Garden of Frognal, and the right reverend Prelate the Bishop of St Albans. Under the new measures, local authorities will be able to require parents to provide them only with the information prescribed in legislation. They may, however, record any other information in their registers that they consider appropriate and have collected through other channels.

To be clear, local authorities will be able to require parents to provide them only with the information that is prescribed in legislation; in this case it will be secondary legislation. I hear the concerns raised by noble Lords, particularly in relation to proposed new Section 436C(1)(d). I will take that away and reflect on your Lordships’ comments.

Amendments that limit this ability could cause local authorities to act with unnecessary caution in relation to the collection and inputting of information. There may be cases where data, such as special category data, is collected that may not be initially deemed directly relevant to safeguarding a child or in their best interests but could in future be critical to protecting that child from harm.

On Amendments 113 and 114 from the noble Baroness, Lady Garden, I will try to reassure her that any provision made in regulations will be lawful only if it has been “reasonably” made. I also thank her for her Amendment 98. Under education law, each parent of every child of compulsory school age is legally responsible for ensuring that their child receives an efficient full-time education. It is therefore appropriate that the name and address of each parent be recorded in the registers.

I thank my noble friend Lord Lucas for Amendments 98A, 101A, 104A, 110A and 126B, and the right reverend Prelate the Bishop of St Albans for Amendments 111, 112 and 127, which raise the important issue of data protection. Regarding data retention, the Bill already allows for regulations to make provision about the format and keeping of registers, as well as about access to and publication of the register. It is the Government’s intention to use this power to stipulate how local authorities must keep the information on their registers up to date and whether and how information is to be published. The requirement in the Bill for local authorities to provide prescribed information to the Secretary of State will help inform policy development; for example, in relation to the types and level of support needed by families and whether particular groups need more support than others.

It is also important that the Secretary of State is able to, if needed, collect individual level data. This can be linked to other datasets for research purposes; for example, to understand who benefits from home education. It is also vital in improving our understanding of children going “missing” from data systems. We would be unable to gather a full picture of this from aggregated data. The Government do not intend to use the power on setting out how the registers are published to instruct local authorities to publish personal information about children or families, but again, I will reflect on the comments made by your Lordships in relation to that.

Registers will also include important information on children that may aid other professionals’ work for the purposes of promoting or safeguarding the education or welfare of the child. It is therefore necessary to enable relevant information to be shared with certain other persons external to a local authority without delay, especially where children are at risk of immediate harm.

Existing UK GDPR obligations will apply, however, and should ensure that all the information held in the registers is protected like any other personal data. It also requires that personal data not be kept for longer than is necessary and is proportionate to achieve the purpose of keeping it. Data protection will be a strong focus in the new statutory guidance, and we will continue to engage with stakeholders on that prior to publication.

I thank the noble Baroness, Lady Jones, and the right reverend Prelate the Bishop of St Albans for Amendments 100 and 101. Regulations are likely only to require details of where a child is being educated and the proportion of time there. This will help local authorities to ensure that children are receiving a suitable education and identify those who are missing education or attending illegal schools.

I turn to Amendments 109A and 110. These amendments relate to the ability to make regulations relating to provisions for the maintenance and publication of children not in school registers. The power to make regulations about whether and how the contents of registers are to be made available or published is important to ensure consistency across local authorities; consistency, or rather the current lack of it, has been mentioned by many of your Lordships today.

However, it may also be appropriate for some of this to be for local authorities to determine, based on local circumstances and requirements. For example, while we would expect to make regulations concerning how the register is to be kept updated, we may not initially wish to prescribe the registration forms that local authorities must use. Similarly, we may not ultimately wish to prescribe whether an authority needs to publish specific information from its register.

I turn to Amendment 133 in the names of the noble Baronesses, Lady Chapman and Lady Wilcox. The regulations prescribing the information to be provided to the Secretary of State have a narrow scope, as only information included within a local authority register can be shared. Information will be used to inform policy development to support safeguarding and children not in school. The Government believe that the negative resolution is appropriate for these regulations.

Regarding Amendment 171S, tabled by the noble Baroness, Lady Jones, existing UK GDPR obligations will apply and require that all the information held in the registers is protected, like any other personal data. In addition, work is already under way in my department to develop a certification process, independently endorsed by the Information Commissioner’s Office, that will cover the education sector to regulate the sharing of children’s data across the whole sector in a better way.

I hope I have managed to cover this large group of amendments on this important topic. I will take away a number of your Lordships’ remarks and reflect on them. With that, I hope the noble Baroness, Lady Whitaker, feels able to withdraw her amendment and that other noble Lords will not press theirs.

Schools Bill [HL]

Baroness Chapman of Darlington Excerpts

Committee stage & Lords Hansard - Part 1
Monday 20th June 2022 Lords Chamber

I finally want to mention something we have talked about quite often. I just want to add a word of caution. We sit here glibly and say, “Children and students should go on work experience.” But we need to know what that entails; it is a huge operation to make work experience work: you have to find employers for the hundreds of children, and you have to make sure that it is the right work experience opportunity for them. My experience is that I would get schools contacting me asking, “Can our students come into your nursery, because we’ve got nowhere else to put them?” If we are to do work experience, it has to be properly funded, properly organised and properly thought through so that it makes a proper contribution to the career development of those young people.

[Baroness Chapman of Darlington (Lab)]

It is a pleasure to follow the noble Lord, Lord Storey. By the time we finish this group, we will have spent more than two hours on it, and that says a lot about the meaty topics that we have in this group that really could have been separated into more groups. The fact that we have had to table amendments to get these topics discussed tells you something about what is not in the Bill.

I still do not understand why the Government are taking this approach. We understand, say, the measures on home-educated children and why the Government are doing that—we will have questions and we will want to challenge specific areas, but we know why they are doing it. With most of the rest of the Bill, we do not know what they want to do, and we do not know why they are doing it; we know how they intend to do it—by taking powers—but we really need to understand why the Government have decided to bring the Bill forward in the way that they have.

Amendment 91 proposes a careers programme for primary schools. It has been spoken to very well by several noble Lords, and I will not repeat everything that they have said. We support the focus on encouraging quality careers advice, information and sharing ideas about different careers with young children. This should be embedded throughout the curriculum. Amendment 158 insists that all schools should follow a national curriculum. The Secretary of State is giving himself the power to do these things—or not—by regulation. We want to know whether he intends to use that power, and how. That gets to the crux of all this: we are all just talking about what we would like to do. That is all very well but, unless we know what the Government are going to do, we are really just having an interesting conversation among ourselves without having anything to properly hang it on. As the noble Lord, Lord Hodgson, said very well, this is about democracy and the role of Parliament. Forgive us, but we take our role seriously and want to use the time afforded to this Chamber to make a positive contribution to the legislation before us. I know that the Minister is listening, and I feel for her, but we are very firm on this point that we keep coming back to. We need to know why.

Many people spoke to Amendment 168 from the noble and right reverend Lord, Lord Harries so, again, I do not want to take up time repeating what others have said. This amendment talks about citizenship and British values; we think it is interesting and a sensible evolution of the current situation. I would like to know what colleagues in the other place think about this. Given that the Bill is a Lords starter, the only way I know how to do that is to get something into the Bill to send to them so that they can debate it. It would be incredibly valuable for us to get the reflections of the elected House so that we can take that forward, because it does make sense—especially given the debate that my noble friend Lord Knight led last week on including environmental education.

Our Amendment 171F—no, sorry, that is the amendment of my noble friend Lady Morris, but my support for it is such that I want to take ownership for myself—is obviously about sharing information with parents and getting rid of the issue of commercial confidentiality in this context. It is perfectly sensible and I hope that the Minister can say something positive about it when she responds.

Our Amendment 171I is about mandatory work experience. I totally take on board what the noble Lord, Lord Storey, has just said about the burden this would place on schools. I hope my noble friend Lady Blower does not mind me saying that she raised this with me earlier and it is an absolutely fair challenge. But the way we are looking at this is that if you are going to have work experience that is of value, it ought to be accessible to all children. It cannot be right that those children with parents in careers or with good contacts get a really good experience, while others get to do a school-based activity or end up in the nursery school run by the noble Lord. That does not seem fair so, in that way, it needs to be made an entitlement so that it is properly supported. We know that is an onerous responsibility but it is one that we think ought to be fulfilled. If noble Lords look at our amendment, they will see how: by doing it in partnership with local organisations.

We think it is wrong that, too often, young people rely on their social networks and connections to get work experience. We think that this disadvantages children and the community of employers because, be they small businesses, public bodies or voluntary and community sector organisations, they are missing out on the opportunity to engage with their local young people. Building a partnership with local organisations equipped to provide quality, horizon-broadening placements would, if the partnership is stable, be long lasting and benefit everyone.

There are lots and lots of examples of this being done very well all over the country but it is patchy. To namecheck just one of them, I say that the Social Mobility Foundation runs a scheme called One +1. It is a good example of a project that could be done in partnership across a wider area, where an employer who has already agreed to take on a young person whom they know, which could be the child of a childhood friend or relative, agrees to take an additional young person which the project has put in touch with them. Taking on two young people on work experience can often be a bit easier than taking one, so it is a minimal extra responsibility for the employer but it doubles the opportunity and makes sure that it is available based on the interests of the young person. That is just one example of how this could work.

Our Amendment 158—to which a few noble Lords have suggested enhancements, which are very welcome—is about the national curriculum. I note that the noble Lord, Lord Aberdare, has suggested that we add first aid, my noble friend Lord Knight would like to include media literacy and the noble Baroness, Lady Bennett, wants us to include online marketplaces, and I think all of that is sensible. I know there is an irresistible temptation to chuck things into the national curriculum and ask, “Why can’t schools do this thing that I am passionate about?”, but the intent of this amendment was more about honing things that are already taking place. We already have financial literacy education in schools, for example, but we think it is important to ensure that that is kept up to date and covers things that are of current concern.

The reason why we feel strongly about this issue and have done for some time is that there are choices here about what is important in what we teach and what skills we think our young people will need to benefit them and indeed all of us as a country. The answer to that question informs the values and attitudes that we as a society want to promote. We should take great care and consideration, as well as debate, in deciding what our children learn. There should be, and there is, flexibility for schools, teachers and parents to influence what is taught, but it cannot be right that the governance structure of a child’s school is what determines whether they benefit from the national curriculum. My noble friend Lady Morris made that point in an article that I found she had written over 10 years ago, and the argument is probably even more relevant now that we are going to see so many more of our schools becoming academies. She talked about the curriculum being

“an entitlement to all children”

and said:

“It stops schools giving up on children who find it difficult to learn or who are difficult to teach.”


There is something in that.

If everything worked perfectly in every school at every stage then there would be an argument for moving away from the national curriculum, but we are just not there at the moment. If we had universally high-quality teaching and leadership, and parents were always getting excellent feedback about how their kids were doing, then perhaps we could be more relaxed about this, but our mission here is to develop the potential of every child. That requires flexibility but it is right that gold-standard core knowledge is available to every child—including, I suggest, my noble friend Lord Knight’s suggestion about environmental education.

Subsection (3) of the proposed new clause in Amendment 158 is about the teaching of black history, something that the Welsh Government have decided to take forward, and we very much welcome that. Michael Gove removed the curriculum’s focus on diversity, and we would say that some of the richness of our national story—which is becoming appreciated more and more, and that is a good thing—has been lost. Teaching black history is essentially optional now. There have been black people in Britain since at least Roman times, fighting in the most famous battles, including Trafalgar, as well as both world wars. Obviously, issues such as the slave trade, colonialism, apartheid in South Africa and segregation in the US have had a significant and long-lasting impact on the world as it is today. However, we make the point that it is vital that the teaching of black history should not only be about empire and slavery, vital though these things are, but should celebrate figures who have achieved incredible things, such as those who were part of Henry VIII’s court or, I would say, someone like Arthur Wharton, the first black professional footballer, who played for Darlington. Those are important too.

This issue is important to us—I think it is important to explain why you are doing things—because we need to connect our history to the world around us as it is today. These are not just fascinating and exciting stories; this is about a history that has too often eliminated women, people of colour, the non-literate and even children. Learning to see past events from different perspectives is a key skill, not just for historians but for everyone who wants to understand the world around them.

I make the point again to the Minister that the Government have so far not explained why they are taking the Bill forward in the way that they are. Unless we get to that, there are several clauses of the Bill that I think are not going to make it to the other place.

--- Later in debate ---

My noble friend Lady Brinton made many important points. My first ever amendment, which I was quite petrified of moving, was during the passage of the Children and Families Act. I moved the amendment that she referred to, which gave a duty of care to schools to ensure that children and young people had the medication they required in school. Prior to that, a school could refuse a child if they were carrying medicine that they needed. It just seemed plain daft that schools would not give the medication within the school. My noble friend says in her amendment—and I would like to understand it a little more—that there should be a doctor’s note as well. That makes sense, but I do not want to think that it would delay the learning and schooling of young people. These amendments are really important, and I look forward to the Minister’s reply.

[Baroness Chapman of Darlington (Lab)]

I looked at these amendments and what struck me is that there did not seem to be an awful lot of trust in the Government on this area. I think we are all very worried about this because we have all spoken to families. I commend the noble Baroness, Lady Brinton, on her speech, which was quite a difficult listen. The cases she described were harrowing in the extreme. However, reflecting on the conversations I know many of us here have had over the years with parents in not completely dissimilar situations, we recognise that sense of desperation. Reluctantly removing your child from school because you feel their needs are not being met is such a big thing to have to do as a parent. It should trouble us all that families are put in this situation.

It gets to a pretty fundamental issue about who is entitled to support, how much they get, what it is used for and how it varies so wildly across the country. We are obviously used to locally determined provision on various things, but this seems to be so fundamental to a child’s well-being that it should not be dependent to the extent that it is on where you happen to live.

When I looked further into this, I came across a report from the House of Commons Library, which explained that in January 2007 there were 1.6 million children with special educational needs in England, which grew to 1.7 million in 2010 before declining and reaching its lowest level of 1.2 million in 2016. This fluctuation suggests that something is going on here that is about not just the child’s need but assessment, local availability of support or some other change of approach. Clearly, we want children to be supported appropriately and consistently.

It would have been helpful to have had the benefit of the SEND review ahead of this Bill, because there is very little in the Bill on this. Amanda Spielman has said that the 2014 SEND reforms, which were some years ago now,

“had the right aspirations, but did not have the intended impact because insufficient attention was given to their implementation.”

She was absolutely right about that because, according to the National Audit Office, between 2014 and 2018—so after the last set of reforms—

“the Department increased high-needs block funding by £349 million (7.2%) in real terms. This rise was larger than the 2.3% real-terms increase in schools block funding for mainstream schools, meaning that the Department has shifted the balance of funding towards high needs. However, because of a 10.0% rise in the number of pupils in special schools and those with EHC plans in mainstream schools, high-needs funding per pupil fell by 2.6% in real terms”

over that period, after the last review. The NAO’s report continues:

“Per-pupil funding in the schools block also reduced over the same period, despite a £754 million real-terms increase in total funding”.


We are very concerned that this new review does not fail on its implementation in the way Amanda Spielman says the last one did—I know many people would agree with her. We wonder whether we will look back when we get the SEND review and think, “My goodness, if only there was a Bill coming before us.” It is not too late for the Government to set out the concrete steps they might want to take to get this provision right. To be positive with the Minister, we would very much welcome government amendments on this on Report or when the Bill enters the other place. These children are often our most vulnerable. They need our support as soon as possible. It is a shame that we are not getting the benefit of the consideration that will take place as part of the review before the Bill reaches Report.

[Baroness Penn (Con)]

My Lords, I welcome the opportunity to discuss further issues related to SEND on this Bill. As the noble Baroness, Lady Chapman, said, some of the individual examples and stories were quite harrowing. It is an issue that the Government take very seriously and, through the process of the SEND Green Paper, are committed to improving. I assure the noble Lord, Lord Hunt, my noble friend Lord Holmes and others that this Government are just as ambitious for children and young people with SEND as for every other child and young person.

Amendment 97 in the name of the noble Lord, Lord Hunt, highlights the importance of local authorities providing specialist educational support services for children and young people with sensory impairments, and there being sufficient funding to do so. As we have heard, local authorities have existing duties to ensure that appropriate support is available to meet their needs. To enable them to do this, they have flexibility on how they use high-needs funding, including to support those with sensory impairments. The budget has increased by £1 billion this year to a total of £9.1 billion. In a number of contributions, we heard about the pressures on the high-needs budget. This is something that the Government acknowledge and have tried to take action to improve. We have seen unprecedented increases in high needs funding. The SEND and alternative provision Green Paper proposals for changes are also intended to establish an improved system that is financially sustainable, as well as securing better outcomes for children and young people. We are really clear on the need to do that.

Within the current system, Ofsted and the CQC report that some areas, such as Barnsley and Hounslow, are highly successful in offering good provision for children and young people with sensory impairments. We want to spread good practice such as this to all areas and, as several noble Lords, including the noble Lord, Lord Storey, referred to, remove the postcode lottery that can be associated with special needs. That is why we are consulting on introducing national SEND standards as part of our Green Paper.

Amendment 99 from the noble Lord, Lord Hunt, proposes a new requirement that all local authority “children not in school” registers must include information about any special educational need or disability that child may have. I know that we will speak in much more detail later in Committee about those registers, but I assure noble Lords that we plan to legislate via regulation to require local authorities to record information about any special educational needs and disabilities a child may have within their register.

Turning to the amendments from my noble friend Lord Holmes, Amendment 163 seeks clarity on the Government’s plan to improve outcomes for pupils with SEND and report on those pupils’ attainment in key examinations. The Government have plans to reduce the attainment gap and improve the SEND system in, as I said, both the SEND and alternative provision Green Paper and the schools White Paper. Taken together, these papers contain ambitious proposals to improve outcomes. Regarding my noble friend’s point on data, the Government already publish information on the attainment levels of children and young people with SEN.

I share my noble friend’s view, set out in Amendment 164, of the importance of ensuring that all students eligible for disabled students’ allowance are made aware of it. That is why existing legislation already requires local authorities to publish information about disabled students’ allowance in their local offer, which must be accessible to all those with SEND and their families. In addition, the Student Loans Company provides information about student finance to schools and colleges, actively engages with higher education providers about student finance, including disabled students’ allowance, and supports higher education institutions to publicise it through events.

On Amendment 165, on every child having access to the support they need and the role that the right documentation can play in this, which the Government would acknowledge, children and young people who require them will receive EHC plans, which are statutory documents describing their needs, and the educational, health and social care provision required to meet those needs. Mainstream schools may, when complying with their existing statutory requirement to deploy their “best endeavours” to secure special educational provision for children and young people with SEN, use appropriate documentation to do so.

Finally, my noble friend’s Amendment 166 would require the department to consult academics, including those who subscribe to the social model of disability. I assure him that one of the key principles underpinning the SEND system is the social model of disability. Where a child or young person needs additional support to access education, their educational setting must put in place appropriate support. The nature of that support is not contingent on any particular diagnosis.

Finally, Amendment 171V in the name of the noble Baroness, Lady Brinton, would require schools to follow medical advice provided by a pupil’s doctor. I assure the noble Baroness that the Government are committed to supporting pupils with medical conditions at school. That is why we already set expectations that schools consider the advice of healthcare professionals.

Schools Bill [HL]

Baroness Chapman of Darlington Excerpts

Committee stage & Lords Hansard - Part 2
Wednesday 15th June 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

It is pleasure to speak to Amendment 88 in particular. We are very pleased to see it. This is an important group of amendments. We believe that there is a need to do more in this area.

I am very proud that my party—a couple of years ago now or maybe it was last September in Brighton—set out a new NHS target ensuring that patients start receiving appropriate treatment, not simply an initial assessment of need, within a month of referral. We have committed to recruiting 8,000 new staff so that 1 million additional people can access treatment every year and we also think there should be open-access mental health hubs for children and young people in every community, providing early intervention and drop-in services to support pupils and solve problems before they escalate.

We would like to see a full-time mental health professional in every secondary school and a part-time professional in every primary school. The evidence base for this is good and there are some excellent projects and work happening in schools that I have visited. I will recommend one, Place2Be—the Minister is nodding and it is good that she is aware of this and she supports it too. It looks at the general well-being in the school and also supports staff in the school. We think that that is important too.

We are concerned about the patchy nature of the support that is available. In too many cases there is a lack of early intervention and prevention. The waits for children’s mental health services have been described as “agonising” by the chief executive of the YoungMinds charity, and a BBC freedom of information request revealed that 20% of children are waiting more than 12 weeks to be seen. By the time they get to that point of referral, the problems are usually already pretty severe and causing huge anxiety and stress to the child, as well as to the wider family. The Government could fund this in part by removing the VAT exemption from private schools—but I know we will come back to this at later stages; we will probably discuss it in more depth next time.

One of the most urgent needs of our time is mental health, and we must make sure that children and young people get early help, with specialist support in every school. It is urgent, and it is quite remarkable that the Bill does not mention mental health.

The noble Lord, Lord Woolley, is not here, and he will not be speaking to Amendment 171E. However, while I am on my feet, I point out that he is talking about extending the remit of Ofsted to consider the work being done. We are interested in this, but, if this idea was to be pursued at some stage, we would also be interested to make sure that Ofsted has the expertise and resources to do this work in the way that I am sure he would want to see happen.

[Baroness Penn (Con)]

My Lords, I am grateful to the noble Baroness, Lady Brinton, for Amendment 88 and for allowing the Committee to return to the question of mental health support in schools.

The Government believe that school leaders should have the freedom to make their own decisions and prioritise their spending to best support their staff and pupils, especially as they address the recovery needs of their children and young people from the pandemic. This support can include school-based counselling services, and we have provided guidance on how to do that safely and effectively. To provide this support, schools can use the additional £1 billion of new recovery premium announced in the autumn, on top of the pupil premium, as well as their overall core school budget—which has significantly increased—to support their pupils’ mental health and well-being. As I said, this can include counselling or other therapeutic services.

However, as the noble Baroness acknowledged, schools should not be the providers of specialist mental health support, and links to the NHS are vital. That is why we worked with the Department of Health and Social Care and NHS England to create mental health support teams—which the noble Baroness referred to—funded by NHS England, which are being established across the country. As the noble Baroness said, the teams, made up of education mental health practitioners and overseen by NHS clinicians, provide early clinical support and improve collaboration between schools and specialist services.

The Government believe that, rather than funding for specific types of support, we should continue to give schools the freedom to decide what pastoral support to offer their pupils. However, to support schools in directing that funding we have put funding in place, as the noble Baroness acknowledged, so that they can train a senior mental health lead in every school, who can then look at what approach is best for pupils in each school.

Schools Bill [HL]

Baroness Chapman of Darlington Excerpts

Committee stage & Lords Hansard - Part 1
Wednesday 15th June 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, with the leave of the House, I will say a few words following days one and two in Committee on the issues your Lordships raised about the Bill. Your Lordships heard me say that we are listening and that, after hearing concerns during the earlier days in Committee, I am acutely aware of the strength of feeling in the House. Your Lordships are aware that there is a process which is followed after Committee. Noble Lords can be reassured that, when we return to the Bill on Report, I will be able to clarify and confirm the Government’s position, having heard the views of the House in Committee. Any such statement will reflect the Government’s position, will be subject to usual processes of agreeing policy and will be shared ahead of Report.

[Baroness Chapman of Darlington (Lab)]

I will press the Minister. Should those amendments that she comes back with on Report, which is how I interpret what she has just said, be as substantial as we would hope and expect given our concerns, which I appreciate she says she had heard, would she perhaps consider reconvening the Committee for us to examine those new amendments? We expect that they will substantially alter the way the Bill is currently drafted.

[Lord Addington (LD)]

My Lords, I will just follow up on that. It would be helpful if we could get some clarity on what else is coming through, if not that process. It is not the Minister’s fault, but she was given a car crash to drive, and we have now got to where we are. Can we please have a little more consultation about the new form of this Bill?

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

I should perhaps declare an interest on the amendments moved by the right reverend Prelate the Bishop of Chichester on behalf of the right reverend Prelate the Bishop of Durham, given that my children attend academy schools in the area of that diocese.

We would like to put on record our appreciation for the contribution of the Church of England to education in the country. I think it was very well put that there needs to be a strategic approach. The amendments tabled by the right reverend prelate the Bishop of Durham would better able that to happen, so we are sympathetic to the case that was made.

We were already minded to support Amendment 60, and my noble friend Lady Morris made the case better than I could. The issues highlighted prove that the Bill would have benefitted from some pre-legislative scrutiny.

I was particularly pleased to hear comments about fair access and admissions. Should we be forming a government any time soon, we would probably want to explore that and push it still further.

Given the very solid case that was made by both the noble Duke, the Duke of Wellington, and my noble friend Lady Morris, we would want the Minister to be as sympathetic as she can be in response to these amendments at this stage.

[Baroness Penn (Con)]

My Lords, I will start by responding to Amendments 59, 64 to 67, and 71 to 74 in the name of the right reverend Prelate the Bishop of Durham. I thank the right reverend Prelate the Bishop of Chichester for moving these amendments on his behalf.

I acknowledge the very important role played by churches and other religious bodies in state education. As the right reverend Prelate has said, these amendments relate to powers to support schools to join multi-academy trusts, helping to fulfil the Government’s ambition to have all schools in or joining a strong trust by 2030. I welcome the right reverend Prelate’s support for that ambition. I understand that, as he said, the purpose of Amendment 59 is to make the language used in Clause 29 consistent with other legislation relating to maintained schools in a church context. However, the existing wording of the clause already captures these particular schools and so this amendment would have no material effect.

Amendment 64 relates to requirements for local authorities to obtain consents before applying for an academy order on behalf of a school with a foundation. The Government understand the desire for the appropriate diocesan authority, as the religious body for a church school, to be among the bodies whose consent is required for an application. However, as drafted, the amendment captures only the diocesan authorities and not religious bodies for other faiths, and the position should be fair for all religious bodies.

The remaining amendments tabled by the right reverend Prelate the Bishop of Durham seek to enable certain religious bodies to apply to the Secretary of State for academy orders in relation to schools for which they are responsible. As I have said, the Government want schools with a religious character to enjoy, like all others, the benefits of being part of a strong academy trust. The Government are sympathetic to the principle of these amendments but further consideration is needed to establish the scope of the religious bodies that could apply for an academy order and the types of maintained school to which it should apply. As drafted, the amendment may not adequately capture all the religious bodies involved in maintained schools with a religious character. It may also inadvertently include bodies which are responsible for schools without a religious character.

Although I have set out some concerns relating to Amendments 64, 65, 67 and 71 to 74, the Government understand the intentions behind them and will reflect further on the issues raised by those amendments and the right reverend Prelate.

Turning to Amendment 60A, first, I want to reassure the noble Duke, the Duke of Wellington, on a specific point—though this may be unnecessary, because he said that this was a probing amendment. He will know that music and dance schools are typically independent schools, and that 16 to 19 maths schools are already academies. As such, they will not be affected by this clause. However, it would be wrong to exclude any schools in the maintained sector with a music, dance or maths specialism from the benefits of being part of a strong trust. I recognise the importance of preserving the unique characteristics of specialist schools within a fully trust-led system, as we have heard from the Committee. I can confirm that, in the event that a local authority applied for an academy order in relation to a specialist school, the regional director would have regard to the capacity of the proposed trust to preserve and support that school’s specialism. But to be absolutely clear to the noble Duke and the Committee, there are no powers in the Bill that would force an existing academy to join a multi-academy trust, and that might be why he was struggling to amend the Bill to address his concerns.

[Baroness Chapman of Darlington (Lab)]

I am a little confused. In the White Paper, the Government’s intention around MATs is quite clear. I think the noble Duke is seeking some assurance that that will not apply to the schools that he is interested in.

[Baroness Penn (Con)]

I absolutely understand that point. I was simply reassuring the noble Duke that within this Bill there are no powers to compel anyone to join a multi-academy trust. It is the Government’s vision for every school to be part of a strong trust by 2030. The intention is for the Government to work with academies and to move people with the Government in pursuit of that vision. I was simply saying that there is nothing in the Bill that would compel an academy to join a multi-academy trust. That said, we have consistently seen that schools in multi-academy trusts are stronger together. The collective focus, vision and community creates opportunities, facilitates collaboration, enables resilience and improves educational outcomes.

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[Baroness Penn (Con)]

To be clear, the undertaking I gave was around the Bill’s powers being used to compel an existing stand-alone academy—the noble Duke gave the example of a specialist maths school but it is not restricted to that—to join a multi-academy trust, not based on any further characteristics of the school. I hope that reassures the noble Lord.

[Baroness Chapman of Darlington (Lab)]

I think the noble Baroness knows what we are getting at here. She has said that she will endeavour to come back with something concrete for us, and that is appreciated. However, reflecting on this, this is not just about requiring these schools to join MATs. The noble Duke has highlighted for us that the powers contained in the Bill could get to the activities of these schools and undermine the essence of them, which my noble friend described. There is nothing in the Bill to protect those schools from that. Previously, my noble friend said that she would quite enjoy the ability to impose standards across all schools, but I do not think she was thinking of these schools when she said that. There is a bigger problem that we have come across here, which the Minister should also attend to.

[Baroness Penn (Con)]

The most successful multi-academy trusts build on the strengths of these types of schools. The intention is to build on the strengths that we see in all sorts of academies, including specialist academies, in building the school system that we want to build in future. That is what is set out in the schools White Paper and what we are trying to deliver and achieve. Looking at and building on the freedoms that those kinds of schools have used to strengthen our education system is the direction of the travel that the Government have set out. We certainly want to continue to support that. We believe that these schools do an excellent job and we want to protect them in future.

I think I have gone as far as I can in setting out my understanding of what the Bill does and in seeking to reassure noble Lords that I will go away, check this point and look at it in the context of the wider concerns about the powers in certain sections of the Bill.

We heard in the debate about the partnership model that these schools have and their important role in providing outreach to other schools in the local area; indeed, that is part of the model that they have. Although it is our view that they can be part of a successful multi-academy trust, I have none the less given an assurance about our intention behind these powers and an undertaking once again to go away and confirm that point for noble Lords. With that, I hope that the right reverend Prelate will withdraw the amendment for now.

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Moved by

[Baroness Chapman of Darlington]

79ZA: After subsection (2), insert—
“(3) Subsection (2) does not apply if the Local Governing Body has explicitly agreed so.”Member’s explanatory statement
This would allow arrangements wherein one academy agrees to fundraise for another in its trust.

[Baroness Chapman of Darlington (Lab)]

I acknowledge the good manners of my noble friend Lord Hunt in not finding it too cheeky that we seek to amend his amendment. Our aim is pretty clear: we want to make sure that, on occasions when the governing body wants to see flexibility when a school joins a MAT, it is able to have that. We think it is important to recognise that that can sometimes occur. It may want to address a particular priority, and that may be one of the driving forces for its desire to join a MAT. We very much support my noble friend’s desire to protect pupils if their school joins a MAT; we are just keen to make sure there is a bit of flexibility. We agree completely that there must be transparency and financial safeguards when a school joins a MAT and I echo everything that my noble friend said.

Moving on, our Amendment 79C draws Ministers’ attention to our concerns about the fundamental inequality in educational outcomes between regions. We are deeply concerned about regional disparities that are growing in education and we think they have worsened since the pandemic. In its recent report, the Education Select Committee in the other place found that disadvantaged pupils could be

“five, six, seven—in the worst-case scenarios eight—months behind”,

according to regional data. By the second half of the autumn term 2020, the average learning loss for maths for primary pupils was 5.3 months in Yorkshire, compared with 0.5 months in the south-west—I think 0.5 months probably means a fortnight. By March 2021, the National Tutoring Programme had reached 100% of its target number of schools in the south-west, 96.1% in the south-east, but just 58.8% in the north-east and 59.3% in the north-west.

More broadly, children in Yorkshire and the Humber are 12 times more likely to be attending an underperforming school than their counterparts in other areas of England. Perhaps it is no surprise that schools across the north have lost out on funding, despite having a higher proportion of poorer pupils. Research by the House of Commons Library found that schools in London got more money per pupil last year, despite having fewer children on free school meals, than in areas further north. Schools in London, where 22.6% of children are eligible for free school meals, received an average of £5,647 per pupil in cash terms in 2021. The figure in the north-east was £4,919, even though it has the highest proportion of pupils qualifying for free school meals, at 27.5%. In the north-west, according to the House of Commons Library, where 23.8% of children are eligible for free school meals, schools got £4,925 per pupil. This is not about doing down children in London, but about highlighting inequality of funding and of outcomes. We believe there is a connection.

We should remind ourselves that the funding of schools since 2010 has been shameful. Cuts to education over the past decade were without precedent in post-war history, according to the IFS, but the pain has not been felt equally across the system. The most deprived one-fifth of secondary schools had a 14% real-terms fall in spending per pupil between 2009 and 2019, compared with a 9% drop in the least deprived schools. So our Amendment 79C asks the Secretary of State to report on outcomes and the financial health of schools by region. We are asking for this because we want MPs and Peers to be able to challenge Ministers on their success or otherwise in addressing regional inequalities in education.

We understand that it is possible now to tease out the information we are looking for from various data, from commissioning, from the House of Commons Library, the House of Lords Library and reports from research organisations, trade unions and others who make a point of looking for this information in a way that enables us to see the full picture. At the moment, the Government do not have an obligation to do it in that way. We think that if we do not collect and present the information in a standardised, regular way, it is too easy to take our eye off the ball. We want to be able to see what is happening in different regions over time, because at the moment we are at a bit of a disadvantage. The truth about what the Government are doing to entrench—or, I hope, address—the relative performance of schools across regions is not shown in the way we think it could be.

All these amendments stem from the lack of information in the Bill on the funding formula. We are very worried about the removal of local authorities from the process. The Explanatory Notes say explicitly that local authorities have the most detailed knowledge about the needs of their local schools, so why are they being treated in this way? There are a number of reasons a local authority might wish to have a role in funding allocations, including those referred to by my noble friends in Amendment 97, which looks at specialist services.

Amendment 86A emphasises the need to take the index of multiple deprivation into account. The reason we are so concerned about this is because the National Audit Office’s recent report into schools funding says that the government should

“evaluate the impact of the national funding formula”.

It is quite explicit in its recommendation:

“In particular, the Department should review whether the shift in the balance of funding from more deprived areas to less deprived areas, and from more deprived schools to less deprived schools, means it is adequately meeting its objective of matching resources to need.”


We feel that currently it is not; hence our amendment asking the Government to be more explicit in the way they look at deprivation. I accept that the amendment could probably be better worded, but I wanted to raise the issue with the Minister now and explore whether there is something we can do through the Bill to enable our concerns to be dealt with.

We think Amendment 92 is sensible and encourages partnership. I am very sympathetic to Amendment 94, referring to transport for 16 to 18 year-olds. Obviously, we would need a full understanding of the cost of that, but I understand completely why that is something we should aspire to deliver. In a local authority area near me, Redcar and Cleveland, there is nowhere to do A-levels. It is not like living in a city, where you can choose between colleges and access them all easily; it is very hard for young people who find themselves living somewhere where a choice of post-16 education is not available. Amendment 85 asks for impact assessments on the national funding formula in rural areas. We have no issue with that at all: it is looking for transparency and understanding of the way the funding formula is impacting different areas of the country in different ways, and we do not have that currently. I beg to move Amendment 79ZA.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

The noble Baroness, Lady Brinton, is participating remotely. I invite her to speak now.

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The national funding formula allocates 3.7% of its funding to IDACI, reflecting levels of deprivation where pupils live. It is important that we retain the flexibility to develop the factors within the funding formula outside of legislation, as we currently do, so that we can continue to allocate funding fairly, according to needs, if and when new measures of need are developed.

[Baroness Chapman of Darlington (Lab)]

It is in some ways reassuring to hear what the Minister is saying. However, does she not accept that we have a situation where the lowest funding is going to parts of the country with the poorest outcomes? However much the Government think they are allowing for these factors, if something is going wrong, either the formula needs to be reconsidered in some respects or other measures need to be put in place to address this.

[Baroness Barran (Con)]

The Government have worked hard. I know the noble Baroness is familiar with the data, but if she looks at the most recent allocations, we are, dare I say it, trying to level up funding to the areas which she and the Government rightly care about. I think others in the Committee will understand very well that these are not things that can be moved quickly, and if we were moving quicker than we are there would be challenge on that. We expect this to be a slow process but the direction of travel is very clear. The noble Baroness will also be aware that in those areas beyond the core schools budget there is also significant investment, particularly through the education investment areas and the priority education investment areas, which cover—I think I remember rightly—55 local authorities across the country for the EIAs and 20 for the priority areas, where they are getting significant additional help.

On Amendment 84 in the name of the noble Lord, Lord Storey, and the noble Baroness, Lady Garden, on the affordability of home-to-school transport for 16 to 19 year-olds, it is for local authorities to determine the level of support available, including whether to offer free or subsidised travel, as many authorities do. Responsibility for securing home-to-school transport should continue to rest with local authorities because they are best placed to co-ordinate it locally. It would therefore be inappropriate to include it in the national funding formula, which directs funding to schools rather than local authorities. These funding provisions also apply only to pupils between the ages of five and 16.

On Amendment 97ZA, in the name of the noble Lord, Lord Knight, of course I welcome the opportunity to discuss sustainability, which is, as the noble Lord said and as all your Lordships are aware, an issue of paramount importance. Noble Lords may be aware of our recently announced strategy for sustainability and climate change, which was co-created with young people and which I think has been very well received. It includes setting sustainability leadership and the introduction of climate action plans, which will include mitigation.

I absolutely agree with the noble Lord on empowering pupils. He will be aware that part of the strategy relates to the National Education Nature Park, which empowers young people through both the information that they gather and the skills that they will learn in their work in relation to the nature park, which we very much hope will stand them in good stead in future life. More generally, the framework set by the Bill does not intend for the actual content of the funding formula to be specified in legislation, so any such detailed provisions would not be dealt with here.

Lastly, I turn to Amendments 92 and 93 in the name of the noble Lord, Lord Shipley. Many of his remarks were about the wider relationship between local authorities and central government. He will be aware that we have been working with local authorities over several years to implement this reform and we will continue to do so. Ultimately, however, if we want the same pupil to attract the same funding based on their needs, wherever they go to school, we must complete the move to a consistent national funding formula.

Schools Bill [HL]

Baroness Chapman of Darlington Excerpts

Committee stage & Lords Hansard - Part 1
Monday 13th June 2022 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, I turn first to the government amendments in my name. The majority of these represent technical amendments to deliver the policy as intended, extend consultation requirements to existing measures and otherwise clarify the intent of the Bill.

[Baroness Chapman of Darlington (Lab)]

I apologise, but I want to intervene on the Minister before she gets too much into her stride. I want to put on record the disappointment from these Benches that these amendments, which we do not consider to be simply technical or minor, are grouped together. It is a shame, because we would have liked to debate them separately. Can the Minister bear that in mind as we come to Report?

[Baroness Barran (Con)]

Of course, we will take that into consideration. I was not aware of the noble Baroness’s concerns. To echo that, there are two measures which are more substantial, which relate to secure schools and a prohibition order as part of our enhanced suite of powers to tackle unregistered schools.

I turn first to Amendments 30, 42 and 76, relating to secure schools and their particular context. Secure schools place education at the centre of the response to supporting children in custody, to reduce reoffending and improve children’s life chances. They will be established as both secure children’s homes and secure 16 to 19 academies using the academies framework as a basis for opening.

Secure schools’ funding agreements require unique provisions that reflect their context. Clause 2(6) was drafted to ensure that future new academy standards would not invalidate those unique provisions. We have now confirmed that primary legislation is not required to achieve that because new standards can be selectively applied within the standards themselves. Amendment 30 therefore removes Clause 2(6) as unnecessary to the functioning of the Bill.

Turning to government Amendment 42, Clause 8 requires the Secretary of State to provide seven years’ notice if they wish to terminate funding for an academy to ensure continuity for all year groups. Because children will generally spend fewer than two years in a secure school, Amendment 42 will modify Clause 8 to reduce the termination notice period from seven to two years for secure schools.

Amendment 76 introduces provision for secure schools covering payment termination notices as well as local impact considerations and consultation requirements. On payment termination notices, it amends the Academies Act 2010 to make it consistent with Amendment 42. Section 2 of the 2010 Act places a requirement on the Secretary of State to give seven years’ notice before ceasing payments to an academy. For the reasons I set out when discussing Amendment 42, this amendment will modify the Act to reduce this notice period to two years. Existing consultation requirements for academies include the requirement that the Secretary of State consider the impact of new academies on existing schools in the area. Given that the secure school will not be recruiting from the local area in the same way as local schools, we seek to disapply this requirement to secure schools.

The Academies Act also requires providers to consult relevant persons, such as local residents, on whether an academy arrangement should be entered into. Our view is that there will be a wide and complex range of views on the location of a secure school that the Government will wish to engage with. A “yes or no” consultation on a secure school is less likely to promote this engagement and, instead, the consultation will focus on how the secure school will work with local partners.

I acknowledge that Amendments 76A and 76B have been tabled to Amendment 76 in my name, and I shall respond to the comments from the noble Lord, Lord German, in my closing remarks.

Amendment 40 relates to academy trust standards. Clause 7 allows the Secretary of State to replace an entire trust board with a board of interim trustees. The amendment makes specific provision for the Secretary of State to consult the relevant religious body where the trust includes academies designated as having a religious character. It takes account of the fact that religious bodies have a particular interest in the governance of academies with a religious character, as reflected in those academies’ articles of association. Where the Secretary of State intends to appoint an interim trustee board, the religious authority will rightly wish to be assured that arrangements are in place to safeguard academies’ religious character. The amendment will ensure that religious bodies are able to make representations before any decision is made to appoint an interim trustee board.

I now turn to the five amendments relating to termination provisions for academy agreements and master agreements. Amendments 43 to 46 and 48 in my name relate to the termination procedure to be followed where a 16 to 19 academy is judged by Ofsted as not providing an adequate quality of education or training, or if the Secretary of State is of the view that boarding accommodation at an academy does not meet the required standards. The effect of these amendments is to apply the termination procedure which applies when an academy is judged inadequate by Ofsted, and it ensures consistency of approach. It also replicates the termination procedure currently provided for in funding agreements in these circumstances.

Amendment 47 expands Clause 11 so that it applies to academy agreements as well as master agreements in the case of a change of control of the trust or an insolvency event occurring. This means that the termination power will apply to a single-academy trust as well as a multi-academy trust. This is a corrective amendment to ensure that the legislation accurately replicates provisions in existing funding agreements.

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[Lord Addington (LD)]

My Lords, it is really something for me to say that I agree with most of the noble Lords opposite on this. It is a very odd Bill and a very odd process that we are going through today.

One question that comes to mind when we look at all these amendments is this: could the Minister give us a rough idea where the Minister’s power to make a decision without consultation has been increased or decreased? If there is anywhere that that power has been decreased, I would be very glad to hear about it. But if it is only the case that “We will make something without going through a consultation process”, surely that shows up one of the major flaws in the Bill.

[Baroness Chapman of Darlington (Lab)]

I echo the comments that have been made in support of my earlier intervention. It seems extraordinary that we are grouping these amendments together. I have not been in this House for too long but my understanding is that this is quite unusual.

One example is government Amendment 148, introducing the new offence. One of the jobs I have had was shadow Justice Minister, and I know that something like this would have been subject to a lengthy debate in and of itself were it part of a Bill that the justice team was proposing. I refer noble Lords to paragraph 1(3)(a) of new Schedule A1, as introduced by Amendment 148, about new childcare and behaviour orders. I think these are a very good idea; if you are found to have been running an illegal school, there should be restrictions on what you are able to do in future. We are not arguing with the principle of that, but paragraph 1(3) of the new schedule says:

“An education and childcare behaviour order is an order which, for the purpose mentioned in sub-paragraph (2) … requires the defendant to do anything specified in the order”.


I cannot find anywhere—perhaps the Minister could direct me, because it is not impossible that I have missed it—an example of what is specified in the order. That is a very broad definition that gives courts enormous freedom. I would like to understand better what Ministers have in mind for courts to be able to do. That is just one example of where this really does not fit with some of the other issues that we have just been debating regarding secure academies and charitable purposes.

I would like a commitment from the Minister that, should there be further government amendments that are not minor or technical—there is no way that you could describe this amendment as either—she will ensure that they are tabled in a timely manner and in a way that facilitates consideration in your Lordships’ House. I feel that we are not sufficiently able to do our job as well as we would like today, given the way that this has been done.

I echo the comments from the noble Baroness, Lady Garden, about secure schools, from my noble friend Lord Knight about the independence of trustees, and from the noble Baroness, Lady Berridge, on charitable purposes.

To be positive towards the Minister, I very much welcome the tone of the comments that she made at the end of our deliberations last Wednesday, when she said she would reflect and listen very hard to what the House was telling her. I wonder if there is anything she can say today, before we embark on subsequent groups of amendments, that we would find useful about how far she has got with those deliberations.

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[Baroness Barran (Con)]

As the noble Lord heard me say, this was agreed through the usual channels where we could have discussed that, had serious concerns been raised. The point has been heard loud and clear but I wanted to give the context. A number of points have been raised which I will aim to address, but I start by thanking the right reverend Prelate the Bishop of Bristol for her support on Amendment 40.

I turn to Amendments 76A and 76B tabled by the noble Lord, Lord German, and presented today by the noble Baroness, Lady Garden, in relation to Amendment 76 in my name on secure schools. Regarding Amendment 76A, the Government remain open to considering any objection to the opening of a secure school. We expect that if the question were framed in this way, however, most local concerns about opening a secure school would focus on its custodial nature. These concerns may very well be valid. However, the secure school provider is not realistically able to address issues with the fundamental character of the school. Instead of consulting on whether a secure school should open, we propose that the provider must consult on how it should work with local partners. That, we hope, should ensure that the consultation is focused on issues that the provider is empowered to address.

Connected to this, Amendment 76B, which proposes to include local government in the consultation requirement, would not result in any material change. This is because the secure school provider must consult on how it will work with local partners, and the definition of local partners that we have used already includes any person

“whose functions are functions of a public nature”,

as set out in Section 6 of the Human Rights Act 1998. The noble Baroness asked if there were any changes in relation to planning. There is clearly no intention to evade planning regulations. She also asked whether the position of the local authority had changed. Of course, more broadly, the position of local authorities will change, given that we intend to give them powers to set up multi-academy trusts, which they have not historically been able to do.

The noble Baroness, Lady Chapman, raised concerns about the potential scope of the proposed education and childcare behaviour orders, while welcoming the principle behind them. I reassure her that while these orders have been designed to be broad in scope, their use will be focused. The court can exercise discretion to impose an order only if it considers it appropriate to do so, and it would be appropriate only for the purposes of protecting children from the risk of harm arising from a defendant re-committing an offence of conducting an unregistered independent educational institution.

We intend for these orders to prohibit activities taking place only in specified settings at specified times of the week, rather than them being a sweeping power. In sentencing, the courts must do so proportionately, so it is not our intention that these orders should prohibit someone working in a setting that is already subject to another regulatory regime. Other regulatory bodies, such as the Teaching Regulation Agency, may wish to take action against those found guilty of conducting an unregistered school but these orders are not designed to interfere with that work. Their aim is to prevent the behaviour which has led to some being prosecuted for conducting an unregistered school, not to interfere with someone’s activity beyond that.

[Baroness Chapman of Darlington (Lab)]

I am grateful; that is helpful. Does the Minister intend to publish any guidance or examples? At the moment there is nothing, as drafted, to say whether these orders will be about someone’s professional ability to engage in running an illegal school or if it will impinge in other areas of their life and their contact with children. There is nothing to give us any guidance about this at the moment.

[Baroness Barran (Con)]

I undertake that we will provide guidance—in inverted commas—whether that is formal guidance or setting out examples in a letter as the noble Baroness suggests. I will need to check with colleagues as to the most appropriate way to do that. I am happy to undertake that we will provide a full explanation, as she rightly requests.

My noble friend Lord Baker, the noble Lord, Lord Knight, and others, questioned whether the measures in the Bill would affect an academy trust’s charitable status. I am pleased to confirm that the Government have engaged with the Charity Commission about the intervention powers, including the termination provisions in the Bill. There are currently no concerns about the interaction of these powers with the independence of charities. My noble friend Lady Berridge raised a very pertinent point again. I reassure her that her letter is in preparation as I stand here.

Through the schools White Paper, the Government set out their vision to deliver real action and level up education, supporting children, empowering teachers and school leaders and enabling parents. This Bill and these amendments help deliver that vision by underpinning it with legislation focused on improving the systems and standards of schools. I commend the amendments in my name and ask the noble Baroness, Lady Garden, not to move the amendments in the name of the noble Lord, Lord German.

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[Lord Nash (Con)]

My Lords, I support the noble Lord, Lord Triesman, in this amendment. I have great respect for people who adopt. I personally support a wonderful organisation called Hope and Homes for Children, which has closed many orphanages in eastern European countries and allowed the children to be effectively adopted—it is not quite the terminology that most of these countries use. I took the Children and Families Act through your Lordships’ House, which was very substantially about improving adoption arrangements. I remember the noble Lord raising this point with me when I was a Minister. It seemed a no-brainer then and it seems to be so now, and I very much hope that my noble friend the Minister will support him in making this amendment.

I would also like to speak briefly on the point about academies fixing their admissions arrangements to their advantage, which has been mentioned. As a rule, this is unfair. There are some schools—schools of different types, actually—which have rather complicated admissions arrangements and one sometimes wonders whether they are deliberately complicated. But, as I say, I think it is unfair on the vast majority of academies and multi-academy trusts.

[Baroness Chapman of Darlington (Lab)]

It is pleasure to follow the recent speakers, particularly my noble friend Lord Triesman. That was an exceptional speech and his personal experience really gave us food for thought. I echo what the noble Lord opposite said about people who take that life-changing decision for themselves and their families to adopt. I too am looking forward to what the Minister has to say in response.

I would also like to support my noble friend Lord Hunt and others in their desire for the Government to commit to the existing position on no new grammar schools. We understand that the Prime Minister is in generous mood with his Back-Benchers at the moment, and it would be a real shame for a change to the current rules to be made in that context. We are concerned about that, given some of the comments referenced by others, and want to make sure that it does not happen.

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[Baroness Penn (Con)]

My Lords, Amendments 35A, 78, 160 and 162 in the names of the noble Lords, Lord Knight, Lord Shipley and Lord Storey, and the noble Baroness, Lady Chapman, seek to clarify the strategic role of the local authority in education, particularly on admissions. I welcome the opportunity to restate that this Government believe that local authorities should remain at the heart of the education system, as the noble Lord, Lord Knight, said, championing all children, particularly the most vulnerable.

Through existing legislation, local authorities are already responsible for ensuring that every child in their area has a school place; for co-ordinating applications for the main round of school places; for identifying children and young people in their area who have special educational needs or disabilities; and for working with other agencies to ensure that support is available. As we move to a fully trust-led system, local authorities will retain these roles, continuing to ensure there are enough school places and to play a central role in fair admissions, particularly for the most vulnerable. We plan to increase the levers that local authorities have to help them deliver these duties, while maintaining trust autonomy.

Like my noble friend Lord Nash, I must disagree with some of the sentiments expressed by some of the Committee on trust autonomy with regard to admissions. The best MATs and academies have a strong record of admitting pupils from disadvantaged backgrounds and achieving excellent outcomes. My noble friend the Minister will happily write to the Committee to set out more detail on this issue.

The noble Lord, Lord Addington, asked about how special educational needs will fit into the picture. In the SEND and alternative provision Green Paper, we proposed new powers to convene partners as part of a statutory framework for pupil movement, including for excluded children. To respond to the question from the noble Lord, Lord Shipley, we will also include consultation on a power for local authorities to direct trusts to admit individual children in limited circumstances. Consultation is ongoing on these proposals. In the schools White Paper, we proposed further strengthening local authority levers to deliver their duties with a new power to object to the schools adjudicator when a trust’s planned admission numbers threaten school place sufficiency and requiring local authorities to co-ordinate in-year applications. We will consult on these measures; it is important that we listen to the outcomes of that consultation. My noble friend Lady Berridge asked about the timing of that. Given the scale and complexity of the admissions system, it is important to get these decisions right, so we are working currently with the stakeholders to refine our proposals. We will consult in due course and seek a further legislative opportunity where needed.

I also agree with the noble Lord, Lord Knight, and others that close working between trusts and local authorities on these duties is essential. Through the proposed powers in Clause 1, we will create a new collaborative standard, which will require trusts to collaborate with local authorities and encourage better co-operation. Amendments 160 and 162, however, propose making the local authority the admission authority for all schools. This would prevent school leaders making decisions that are most appropriate to their community, including, as we heard from the right reverend Prelate the Bishop of Bristol, for voluntary aided schools, which have had long-standing control over their own admissions.

The proposal in Amendment 78 to allow a local authority to direct a physical expansion of any school would be very difficult to achieve, because in many cases neither the local authority nor the Secretary of State has control over a school’s land. Our White Paper proposal instead allows trusts to continue to determine how many places they will offer but gives local authorities an additional power to ensure that they can still meet their sufficiency duty.

Amendment 58A from my noble friend Lord Lucas rightly emphasises the importance of parents having access to the information that they need to support their children’s schooling and of schools having good links with their parent body. However, we do not believe that this amendment is necessary because existing regulations, which academies are required to follow via their funding agreements, already require academy schools to provide a range of information to parents on aspects such as exam performance, Ofsted outcomes and admission arrangements. Furthermore, the department’s governance handbook is clear that schools and academy trusts should have in place mechanisms to engage with parents and the broader community, and that should be able to demonstrate how those views have influenced their decision-making. These provisions will transfer to the academy standards in future.

Amendment 160, in the name of the noble Baroness, Lady Chapman, is rightly concerned with the best interests of looked-after children, some of the most vulnerable in our society. That is why the School Admissions Code already requires all schools to give the highest priority in their admissions criteria to looked-after and previously looked-after children. To respond to Amendment 169 in the name of the noble Lord, Lord Triesman, I am pleased to confirm that the admissions code was updated last year to require admissions authorities to provide children adopted from state care outside England equal highest priority for admission with those who are looked after and previously looked after by a local authority in England. That change is now in force. I join him in paying tribute to my right honourable friend Nick Gibb, the previous Schools Minister, but also noble Lords in this Chamber—the noble Baroness, Lady Walmsley, and the noble Lords, Lord Russell, Lord Watson and Lord Storey, as well as my noble friends Lord Agnew and Lord Nash, who, along with the noble Lord, Lord Triesman, have shown a commitment to advocating for this group of children. The Committee has my commitment that those children will continue to be prioritised in admissions criteria. As the noble Lord, Lord Triesman, noted, the Government are looking at including them in the school census from the 2022-23 academic year to gather the data that we need when we look at extending the pupil premium plus to that group of children too.

Finally, I turn to the amendment of the noble Lord, Lord Hunt, which seeks to remove Clause 28 from the Bill. As we have heard, grammar schools have a long history within the education system and, where they exist, they are popular and oversubscribed. However, they are concerned about surrendering their independence to a MAT if it does not share their views on selection by ability. Clause 28 will put the status of academy grammar schools on to a legislative footing by designating them as grammar schools in the same way as local authority-maintained grammar schools are designated as grammar schools. The Bill will not enable the opening of new grammar schools. These changes, at their heart, are about regularising, within legislation, the status of grammar schools.

[Baroness Chapman of Darlington (Lab)]

We completely accept that the Bill as it stands does not legislate for new grammar schools, but is it the Government’s position that, should such an amendment be forthcoming in the other place, they would oppose it?

[Baroness Penn (Con)]

The Bill does not provide for that, and it is not government policy to open further grammar schools. It is about regularising their status within the legislation, and the provision makes sure that only a parental ballot can trigger an end to selection, whether that grammar school is a local authority-maintained grammar school or an academy grammar school. It will remove one of the main perceived barriers to them joining a MAT, while retaining the right of parents to choose whether they should continue to select by ability. I therefore hope that the noble Lord, Lord Knight, will feel able to withdraw his amendment and that other noble Lords will not move theirs when they are reached.

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[Lord Addington (LD)]

My Lords, it is something running through this debate; there has been discussion on it. I hope we can find this out. I assumed that the Minister would have been briefed.

[Baroness Chapman of Darlington (Lab)]

The Government are in a bit of trouble here. I have not previously sat through a debate where there has been no support at all for what the Government are trying to do. I do not see how the Bill can leave this House intact. It is becoming quite urgent for the Minister to share with us the Government’s intentions around it. I appreciate that may not be possible today, but on Wednesday we should have some indication of how the Government intend to respond. This is getting repetitive and very frustrating. Deep concerns have come up through this discussion that demonstrate again the failure of the Government to engage with academies, particularly on their approach.

My noble friend Lord Knight makes very sensible suggestions about the appointment of trustees, which highlights the issues around remuneration. We get the impression that the Government have not thought this through sufficiently. He rightly highlights the dangers of a gang of usual suspects taking roles—although he did not rule out being one himself. This makes us all realise, the Bill being as it is, that none of us has the first idea where the Government will take us. This is not a sustainable position for the Government to put the Minister in day after day as we go through Committee.

The Bill is muddled and rushed and has not benefited from the regulatory review. We do not understand the haste. There is no clarity about how all this will work in practice. The noble Baroness, Lady Brinton, summed it up really well. She said there was no strategic framework and no detail, and that it does not reflect the White Paper. I am afraid that is where we find ourselves. Several noble Lords have proposed a delay. It would appear a justifiable proposal at this stage, given everything we have heard. It would be in the Government’s interest—perhaps not today but on Wednesday, before we go much further—if we could have some indication about what they are going to do about the fact that they clearly will not have sufficient support to get the Bill through as drafted.

[Baroness Barran (Con)]

I start by acknowledging the noble Baroness’s last comments. I will endeavour to come back on the next day of Committee with more clarity on the points she raises.

I thank my noble friends Lord Agnew, Lord Baker and Lord Nash, who have so much experience in this area, for discussing their concerns in respect of Clauses 5 to 18 with me ahead of today’s Committee. As we know, the vast majority of academy trusts are well managed and meeting their obligations, but it is right that the Secretary of State should be able to step in where trusts fail to safeguard children’s education and public money.

These intervention powers form part of a toolbox of measures enabling the Secretary of State to intervene in trusts in a proportionate way. The powers enable the department to tackle failure at the multi-academy trust level. In response to my noble friends and the noble Lords, Lord Knight and Lord Addington, and the noble Baronesses, Lady Brinton and Lady Chapman, I shall attempt to explain why these powers are necessary, offer some assurance as to how they will be used proportionately, and summarise our plans for building confidence in the department’s decision-making processes.

The powers are necessary for two main reasons. First, they will provide a strong platform on which to build a fully trust-led system. Under the current framework the Secretary of State’s intervention powers are set out in individual funding agreements, as we have heard. These powers can vary, depending on when the agreement was signed. In the case of a multi-academy trust, there may be several funding agreements with different termination provisions. We believe it is the right time to create a more coherent trust framework under which the Secretary of State’s powers can be applied consistently and transparently.

Secondly, the powers will allow the Secretary of State to intervene, where necessary, in a more proportionate way. The current tools are limited and blunt, relying heavily on the power to terminate the funding agreement. For example, Clause 5 will give the Secretary of State a targeted power to act where a trust is failing to fulfil a specific legal duty. This could include, for example, not complying with the new attendance legislation under this Bill or a misuse of funding.

My noble friends have suggested that the Secretary of State could enforce such requirements under common law by taking legal action against the trust for breach of contract. I fear that such an approach to enforcement would be costly and burdensome for both the department and trusts. Instead, the Bill provides for a straightforward remedy, while allowing for resolution through legal action as a last resort.

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[Baroness Barran (Con)]

I will come back to the noble Baroness on that point. I do not have the answers to hand but I will write to her.

We believe that there will be circumstances where it is right to remunerate trustees who have the particular skills and experience required to tackle the most serious failings in governance and management. These powers offer an alternative to terminating the funding agreement, which could be costly and disruptive to children’s education.

We would expect any additional directors and members of interim trust boards to be drawn from our strongest trusts, in line with our aspiration for a trust-led system. If noble Lords have colleagues who are trustees, or are trustees themselves and wish to discuss this further, I am happy to undertake to meet and explore this point.

My noble friends expressed concerns that these powers could be used in a heavy-handed way, such as terminating a trust’s master funding agreement on the basis of a single breach. As I have explained, the intention behind these measures is to create a more nuanced framework for intervention which avoids resorting to the threat of termination, while ensuring that weaknesses can be addressed. Any Secretary of State is bound by common-law requirements of proportionality. This means that they would terminate a funding agreement only on the basis of a material breach. Moreover, except in very limited circumstances—for example, where a trust is insolvent—the Secretary of State may terminate a funding agreement only after exhausting other options.

In general, the Bill provides for termination only where a trust has not addressed concerns raised through an earlier intervention, whether a compliance direction, a notice to improve or a termination warning notice. I agree that there should be proper scrutiny of how the Secretary of State, through regional directors, exercises any powers of intervention in academies and trusts. The Government’s recent schools White Paper announced a plan for a review of regulation. I assure the Committee and my noble friend behind me that, as part of that review, we will—

[Baroness Chapman of Darlington (Lab)]

Given that the regulatory review seems to be so significant in the Government’s considerations and has come up many times, and that we are discussing pausing the Bill—I know the Minister has not yet engaged directly with that—I wonder whether we could have some idea of the timescale on the regulatory review. Should we wish to suggest a pause, we could make sure that it was for sufficient time, but not too much time, to allow us to benefit from the findings of that review.

[Baroness Barran (Con)]

We plan for the review to be launched in the coming weeks. I cannot give the noble Baroness an exact date, but I think I am allowed to say “shortly”. I have probably said more than I am allowed to.

I will go back, because this is important. The noble Baroness is right to raise the regulatory review; we see it as very important. As part of that, we will look at how we provide for the scrutiny of how these powers are exercised. Critically, we will do that in a way that wins the confidence of the sector.

I have reflected on my noble friends’ concerns, but I believe that, taken together, these clauses create a sound framework for robust but proportionate intervention as we move to a fully trust-led system.

Amendments 39A and 39B in the name of the noble Lord, Lord Knight of Weymouth, envisage a new role for Ofsted in inspecting multi-academy trusts, and make the decision to issue a compliance direction and a notice to improve contingent on the outcome of such an inspection. Currently, the department relies on a range of evidence from a variety of sources to build up a joined-up picture of each multi-academy trust, to inform decisions about intervention. This includes evidence on finance and governance, as well as Ofsted’s school inspection judgments on educational performance.

Through the regulatory review, the department will consider the evolving role of inspection in a fully trust-led system. This will include consideration of how inspection of multi-academy trusts would be co-ordinated with our wider regulatory arrangements, as well as how it would interact with school-level inspection. I hope the noble Lord will agree that it is important that the review runs its course before we make any decisions in this area. He also asked a number of quite specific questions. If I may, I will write in response.

I commend Clauses 5 to 18 standing part of the Bill. I also ask the noble Lord, Lord Knight, to withdraw his amendment.

Schools Bill [HL]

Baroness Chapman of Darlington Excerpts

Committee stage
Wednesday 8th June 2022 Lords Chamber

Moved by

[Baroness Chapman of Darlington]

1: Clause 1, page 1, line 5, leave out “may” and insert “must”
Member's explanatory statement
This amendment explicitly lists the academy standards the Secretary of State must regulate for, namely those set out in section 94 of the Education and Skills Act 2008 for independent schools.

[Baroness Chapman of Darlington (Lab)]

My Lords, given the speeches we heard at Second Reading, and the conversations which have been had subsequently, I would be very surprised if Clause 1 leaves this House intact or perhaps is even included in the Bill at all.

We feel that the Government have not explained the approach that they have been taking to this clause. On the one hand, the Government say that they want all schools to be academies by 2030, which I would have thought was about decentralisation, innovation, flexibility and freedom to respond to local circumstances—this is the essence of what an academy was originally designed to do. I accept that, over recent years, things have moved on, and that the Government may wish to rethink the way they manage their relationship with academies.

On the other hand, we see in Clause 1, line 1:

“The Secretary of State may by regulations set standards in relation to Academies”.


We think this is the wildest imaginable power grab by the Secretary of State. Is this the end for academies as we have known them? If that is the intention, the Government need to be much clearer about that. So what are they doing, and what is the right balance between centralisation on the one hand and freedom for our schools on the other? That is what I hope we will be able to tease out this afternoon.

In the White Paper, the Secretary of State says that the Government do not have or claim to have all the answers, yet it seems that he wants to have all the powers all the same. If the Government want a fully trust-led system within a single regulatory approach, they need to set out what this approach should look like. In a government press release issued on 25 May, the department said:

“The Schools Bill will bring the new regulatory standards developed through the review on to a statutory footing, provide a range of new powers to drive up standards, including the possibility for the Secretary of State to intervene in the very rare case of a failing academy trust, and support the 2030 goal, including allowing local authorities to request their schools move into strong trusts.”


But the Bill itself at the moment does not do this: it does not define new standards to be brought on to a statutory footing, because they have not been developed. So, we feel that, in a way, the Government are flying blind here—or asking us to.

The Delegated Powers and Regulatory Reform Committee, in its second report of this Session, makes exactly this point very powerfully:

“Although clause 1 is entitled ‘academy standards’, the clause contains neither academy standards nor the principles on which the standards will be based.”


It says that this power “is excessively wide” and that the Government have not provided

“draft regulations that would illustrate how the power might be exercised.”

We are concerned about this. The committee says that

“the delegated power in clause 1 is excessively wide”

and should be removed from the Bill. It says that the Government’s reasons for dealing with academy standards in regulations are both “predictable and formulaic”, which I think is a polite way of telling the Government that they really should not be taking this approach.

Another Select Committee, the Constitution Committee, in its first report of this Session, is similarly concerned. It makes an important point about Clause 1 when it says:

“Clause 1 is unclear on whether the power is designed to facilitate the making of regulations for all academies or may … be used to set distinct requirements for a specific academy”—


or MAT. We do not think there is a need to rush this. We accept that there may be a desire, or even a need, to standardise the framework for schools, given the Government’s intention to fully academise by 2030, and we would not necessarily disagree with the Government in their desire to do that and have a standard framework for all schools, but there is absolutely no need to approach it in the way Ministers are at the moment. Clause 3, which we will discuss later, goes further still, as it gives Ministers unlimited power to amend legislation as they see fit.

We have had these debates many times in recent years, on various Bills, but I had hoped that the Government would not attempt to take this kind of approach to a Bill about schools, or any public service, because it really is not needed. I urge noble Lords on the Benches opposite to just think for a minute about what they would think about a Labour Government attempting to take such freedoms from scrutiny and accountability for ourselves. This Government’s “fill in the blanks later” approach means that Parliament just cannot fulfil its proper role, so the Government need to be much more upfront about what they are really seeking to do and, if they do not know what they want to do yet, they should withdraw these clauses and come back when they have decided how they intend to proceed. They may find that there is cross-Bench support for some of the things they want to do.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)]

My Lords, I shall begin by speaking to the first group of amendments, which are mostly amendments to Clause 1 tabled by the noble Baronesses, Lady Chapman and Lady Wilcox. Clause 1 enables the Secretary of State to make academy standards regulations, subject to the affirmative procedure. I have heard concerns from almost every noble Lord who has spoken this afternoon about the breadth of the power in Clause 1 and the potential for the centralisation of power over academies with the Secretary of State. I genuinely look forward, after today’s debate, to reflecting on the points that have been raised, and I hope I will be able to meet and discuss them further ahead of Report.

If I may, I will just set a little of the context of the Bill and why it should not be seen in isolation. My noble friend Lord Lucas asked how this makes schools better. The Bill needs to be seen in the context also of what was covered in the schools White Paper, with the Government aiming to improve further the quality of education. We plan to do this through our commissioning approach, by creating a system that incentivises school improvement, and by a coherent inspection and regulatory approach. Much of this work to raise standards will be done in the coming months and will involve extensive engagement with the sector. However, we are clear that we need to ensure that no school or trust falls below a clearly articulated minimum standard. The Bill sets out what these standards could include and, in later clauses, how we propose to enforce them. I recognise concerns from noble Lords about the proportionality of our enforcement approach, and I hope to address those concerns in future debates.

The current regulatory regime has enabled the growth of the academy sector over the last decade, and I pay tribute to noble Lords in the Chamber who were instrumental in making that happen, but it was designed for a school system comprising hundreds of academies, rather than a trust-led system comprising all schools. The academy standards regulations will set out the requirements on academy trusts clearly, consistently and subject to parliamentary scrutiny. On the point made by the noble Lord, Lord Addington, that the Secretary of State can jump out of bed in the morning and change things, that really is not accurate, and I will try to clarify further. They will create a common rulebook for academy trusts that is capable of applying equally to all trusts and types of academy. This is an important step that will provide a level playing field for multi-academy trusts and more effective and proportionate options for enforcement if a trust does not meet those obligations.

We are introducing the new regulatory framework in a phased way to minimise disruption to the sector. To this end, we do not intend to use these regulations to place significant new burdens on academies that would restrict the freedoms that enable them to collaborate, innovate and organise themselves to deliver the best outcomes for their pupils. We will formally consult on every iteration of the academy standards regulations. We expect the first set of regulations will largely consolidate the existing requirements on academy trusts that are found in their funding agreements, the independent school standards regulations and the Academy Trust Handbook.

I reiterate that I recognise the strength of feeling across the Chamber on Clause 1 and fully intend to take whatever time is needed to reflect on the concerns, views and suggestions of noble Lords today.

The noble Baronesses, Lady Chapman and Lady Wilcox, have tabled a number of amendments relating to what the academy standards regulations may or may not cover. To be clear to the House about the Government’s intentions, we had provided examples of what the academy standards regulations may cover in Clause 1(2). However, I accept that the list of examples is lengthy, albeit they describe requirements that largely already apply to academies.

The noble Baronesses, my noble friend Lord Nash and others have suggested that the regulations must set out standards equivalent to those applied to independent schools. I think your Lordships will appreciate, however, the need for additional requirements on matters such as the appropriate management of public funding, fair admissions and other matters covered not by the independent school standards but by, for example, funding agreements. As previously mentioned, we want to consolidate as much as possible the existing requirements into a single set of regulations. We could not achieve that if most requirements were to remain in funding agreements and the Academy Trust Handbook.

The noble Baronesses are also seeking that examples listed in Clause 1(2) be removed, such as curriculum, admissions, governance, teacher pay and pupil assessment, among others. The Government have no desire to intervene in the day-to-day management of individual academies other than in cases of failure, but we must get the basics right. To take only one example, we believe it is important that parents can continue to rely on a fair admissions system when they apply for a school place.

Clause 2 will make void any provisions in existing academy funding agreements that deal with the same matters that will be in the academy standards regulations. I recognise from conversations with my noble friends Lord Baker, Lord Agnew and Lord Nash that they have concerns about existing contracts being overridden. This was also raised by the noble Lord, Lord Knight of Weymouth. Of course, this is something that Governments would wish to do only very rarely, but the only alternative in this context, as the noble Lord, Lord Knight, pointed out, would be to seek to renegotiate individual contracts with individual trusts, which would be a far more complicated, expensive and time-consuming approach.

There is precedent for this approach. For example, the Children and Families Act 2014 made provision requiring academies to provide free school meals to pupils, bringing them into line with requirements on maintained schools. Those provisions overrode funding agreements; as here, that was deemed appropriate in order to enable us to make essential changes and regulate and support schools better. This is an important clause for enabling the current contract-based regulatory regime to move to a simpler, single overarching statutory framework, which will ensure that academy trusts are all subject to the same requirements that will be in the regulations.

Finally, Clause 4 will require academy trusts to have regard to guidance that the department will issue. The guidance will provide a clear and accessible articulation of the requirements in the academy standards, providing greater clarity for the benefit of both academy trusts and wider stakeholders.

The noble Lord, Lord Knight, questioned whether the Bill should be a hybrid one. The legal advice we have taken suggests that this is not a hybrid Bill, but I am happy to return to this point in the letter providing more detail.

In closing, I would like to pick up on just two points; one was raised by the noble Baroness, Lady Blower, about acknowledging the strengths both in academies and in local authority maintained schools. I think it was the noble Lord, Lord Hunt, who challenged me on that at the Dispatch Box in an earlier debate, but the noble Baroness will know that it is absolutely clear in the schools White Paper and in our move to encourage local authority maintained schools to create their own MATs that we recognise absolutely the strengths in the maintained sector and hope to use that for the benefit of more schools and more pupils in future.

I genuinely thank your Lordships for the very constructive tone of this debate and for the spirit in which you have shared your expertise, experience and advice. As I have said, we will reflect on that with great care. On that basis, I ask noble Lords not to press their amendments.

[Baroness Chapman of Darlington (Lab)]

I think it is only right that I recognise the tone that the Minister has just struck and welcome the fact that she has acknowledged the concerns from across the House—although I do not think she had much choice. She said that she will listen and that there will be consultation on standards. I gently suggest that this should take place before the Bill goes through its future stages. The Minister is managing to unite the noble Lords, Lord Baker and Lord Adonis, and the noble Baronesses, Lady Bennett and Lady Morris, which is quite something to achieve. It would be far better for school leaders, parents and students to see us proceed with something which, although perhaps not consensus, is short of the level of concern we have heard expressed today. Obviously we will return to this issue at later stages, but I thank the Minister for the way she has engaged with the discussions so far. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

--- Later in debate ---

[Baroness Morris of Yardley (Lab)]

My Lords, I will make a very brief intervention. I struggle with the whole issue of the curriculum. I basically agree with the noble Lord, Lord Lucas. When I look at many schools, there is not the time in the week for them to do the things that—as the noble Lord, Lord Agnew, just said—might need to be done in the school and community context. The school week is overcrowded and does not leave sufficient flexibility for teachers to use their professional judgment about what needs to be covered. I understand that.

I suppose it is my age—I do not know—but I have always welcomed the entitlement of the child that the national curriculum brought about in the day of the noble Lord, Lord Baker. I was teaching when the noble Lord, Lord Baker, introduced the national curriculum. My kids in an inner-city school got a better deal because we, as teachers, were made to teach them things that, to be honest, we had assumed they were not able to learn. That is a whole history of education to go into.

I find it quite difficult still to balance the entitlement the national curriculum gave to children to learn a broad and balanced curriculum, and still would. I worry that freedom on the curriculum means that a school will choose not to teach music, science or Shakespeare. When you have the relationship of all schools to the Secretary of State, I struggle to be really confident that the DfE, Ministers or civil servants could intervene if a child was being denied that access to a broad and balanced curriculum.

I have never quite worked out how it resolves. It is always the same; in most schools it works well, and they get it right, but we need to protect the right of every child to all the subjects in the national curriculum and all those experiences we think they need. I am asking the noble Lord, Lord Lucas, in his response, to reflect on how his amendment would ensure that balance and that the protection of the child’s entitlement will be kept.

[Baroness Chapman of Darlington (Lab)]

I think that we are at risk of having a really interesting debate about the substance of what a child should learn in school, which the Bill does not actually allow us very easily to do. The benefit of what the noble Lord, Lord Lucas, is proposing is that he is very clear where he is coming from, why he is doing it and what he is seeking to achieve. There is a philosophical underpinning of the amendments that he is proposing, so at least we have something to hold on to when we either agree or disagree with him.

--- Later in debate ---

[Lord Knight of Weymouth (Lab)]

Reflecting on the debate that we have had, it occurs to me that, effectively, in announcing that all schools will become academies, it is an announcement of the end of the national curriculum. What my noble friend has just described in respect of the literacy and numeracy hour was an up-front policy and up-front announcement—it was something about which there could be a consultation, discussion and debate. There has been no press release saying that the Government’s wish is to abolish the national curriculum, yet that is what we must have in mind as we debate this Bill.

[Baroness Chapman of Darlington (Lab)]

Is it? I would like to know the answer to that question, because it is not clear whether that is the Government’s intention or not. Were the Government to come forward to say that it is what they plan to do and that they want freedom such that there is no national curriculum as we would recognise it now, then we could have a really big argument about that. We would involve school leaders and parents and look back over the successes and failings of the national curriculum; I very much agree with what my noble friend Lady Morris said about an entitlement to education, particularly around music and literature.

The fact is that we do not know. The Government’s intention is not being shared with us. We may be imagining and fearing the worst, and fearing intentions that do not exist, but the Government are asking a hell of a lot for us to accept on trust an assurance from the Dispatch Box here that there is no current intention to do certain things. Really, what we ought to expect, and what families expect, is much more information about is going to happen on the ground and in the classroom. That is what people are really interested in.

I take it that the noble Lord, Lord Lucas, will not press his amendments, so we do not need to get into whether we would support them individually, but I just flag this issue about the lack of effort that the Government have made to engage with leaders in the sector. It is really damaging and is destroying some of the confidence that leaders have in the department at this point.

[Baroness Penn (Con)]

My Lords, it is probably worth my reiterating my noble friend the Minister’s comments that we have heard and understood noble Lords’ concerns about the breadth of the power we are discussing and the fears about the centralisation of power over academies with the Secretary of State, and I know that we have heard other concerns about the nature of the power. It is worth reflecting on what the noble Lord, Lord Knight, said in terms of how we use this Committee stage. While we have heard those overall concerns, it is useful to have a discussion on specific elements within those clauses where noble Lords have issues that they wish to raise or questions that they wish to discuss so that we can make the best use of the time that we have in Committee.

I shall deal directly with the amendments tabled by my noble friend. We share his desire in these amendments to protect academy freedoms. The first set of regulations made under these powers are intended to consolidate and reflect existing requirements on academies. They will not represent a change of requirements on academies. This includes those areas referenced in my noble friend’s amendments: curriculum, length of school day, leadership and admissions. It is important to bear in mind that some requirements exist in these areas for academies, such as the requirement to teach a broad and balanced curriculum, including English, maths and science, and the requirements of the Academy Trust Handbook in relation to management and governance. The Secretary of State needs to be able to set standards in these areas. As my noble friend the Minister previously said, it is important that there is a clear set of minimum standards for academies to ensure that we get the basics right. At this point, it is also worth repeating that the Government have no desire to intervene in the day-to-day management of individual academies other than in cases of failure.

I turn specifically to Amendment 29, which seeks to protect the provisions within existing funding agreements. My noble friend Lord Nash touched on this, as did others. As we move to a fully trust-led school system, it will become increasingly unwieldy and difficult to regulate thousands of schools on the basis of individual funding agreements with no consistent set of minimum standards that apply equally to all academies. That is why, alongside a more proportionate compliance regime, we want to move away from a largely contract-based regulatory regime to a simpler and more transparent statutory framework—one fit for a system where every school is an academy.

I just touch on the debate and scrutiny that we might need in that circumstance. Some of the requirements are in a handbook that is amended by Academies Ministers; in bringing what is currently in a handbook into a form of regulation, with consultation with the sector in advance, there was the intention of having an increased level of parliamentary involvement and scrutiny in that process compared with the status quo, reflecting the fact that we are aiming to move towards a system where every school is part of a multi-academy trust. I hope that helps to reinforce the Government’s intention behind what we are seeking to do here. It also ensures, as I have said, that academy trusts are subject to a set of requirements over which Parliament has oversight and to which they can be held to account by parents. My noble friend’s amendment would enable funding agreement provisions and academy standards to co-exist and potentially conflict, if the former are not rendered void where there is a corresponding academy standard.

Finally, I turn to Amendment 34, which seeks to prevent primary legislation relating to the curriculum being amended by regulation unless it relates specifically to the curriculum in academies. Academy trusts are already subject to many of the same requirements as maintained schools, as set out in numerous pieces of primary legislation. As I have said, the intention here is to consolidate these requirements on academy trusts as much as possible into the academy standards regulations. This will be a gradual process; we want to work with academy trusts on the implementation of the academy standards at a pace which is right for them. As my noble friend reassured the Committee in her previous contribution, for each and every change of those regulations, there would be consultation in advance.

As we move towards a school system in which all schools are academies within strong trusts, we will want to ensure that the legal framework is fit for purpose, including by removing requirements that should prove excessively onerous or unnecessary. Clause 3 enables the Secretary of State to make these adjustments, subject to the affirmative procedure, and to be responsive to the changing needs of the school system.

I recognise that the autonomy to decide on key aspects of running a school, including the curriculum it chooses to teach, enables academy trusts to deliver the best outcomes for their pupils, and we have no intention to undermine those freedoms. This Government and I share my noble friend’s commitments to the principles of academy freedom, and, with this reassurance, I hope that he will therefore withdraw his amendment at this stage.

--- Later in debate ---

[Baroness Chapman of Darlington (Lab)]

This set of amendments is quite close to my heart. I think most of us here will have served as parent or community governors or on governing bodies in some form or another. I do not think any of us has rose-tinted glasses about the experience; it is not always a fulcrum of democratic engagement enabling parents to make change. That is not quite my experience, anyway. However, it is a formalised way of enshrining the power of parents in decision-making. Echoing what my noble friend Lord Hunt said about Parentkind and the initiatives it proposes, which I absolutely support, we need both: a way of having the formalised power of parents alongside the broader engagement initiatives. I agree with what the noble Baroness, Lady Bennett, just said about her Amendment 21A being entirely complementary to these amendments. This is worthy of the Government giving it some thought and coming back with their own suggestions of how it ought to be done. I have a lot of time for what my noble friend Lord Knight said about avoiding being too prescriptive, but perhaps there ought to be some mechanism whereby schools can decide how they want to go about this task of ensuring that parents are properly represented, empowered, engaged and involved in their children’s education.

There is much evidence that parental engagement is better for all children, not just the children of the parents taking part. It is vital for community confidence in schools. When a school has been through a difficult time—perhaps it has been forced to academise or change its name—community confidence is often the first thing to go. That affects admissions and many different things. The more we can encourage schools, and in some cases compel them, to take steps to improve relationships with the wider community, specifically through parents, the better.

We support the idea of parent councils. We are very warm to that idea. Reflecting on what my noble friend Lord Hunt said about trusts in the NHS, I remember an old friend of mine, Alan Milburn, talking to me about this at the time. I thought it sounded fantastic, but now I question just how effective those mechanisms are on a day-to-day basis. They are important to have, but they work well only alongside a raft of other measures around patient involvement, effective complaints procedures and networks in the local community around specific conditions. The two need to go hand in hand.

So we do not look at this with a backward-facing “Let’s recreate something that’s existed in every school historically”. It is about taking the best of what we have perhaps lost in some situations and adding different ways of engaging parents—there are now quite forward-looking, innovative and creative ways, using technology —to make sure that you do not just get the parents who would probably be most engaged anyway but get parental engagement that is representative of the wider community. I think we all want to make sure that we get that right.

I do not think the Minister is about to stand up and say, “Yes, we accept these amendments”; she is probably going to say that she does not think they are necessary or that there are other ways of going about it. But it would be good if she could come back at some point and explain how the Government are going to encourage or compel—however they want to do it—to make sure that all schools, whatever their governance status, can benefit from the value that can be gained from the really effective involvement of parents.

[Baroness Barran (Con)]

I thank all noble Lords for their amendments relating to trust governance structures, parental representation and engagement, and the definition of “parent” in the Bill.

Amendments 23, 24 and 25, in the names of the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Blower, seek to secure the position of parental representation in the trust governance structures at both trust board and local level, and to have a strategic plan for parental and stakeholder engagement. Amendment 25, in the name of the noble Lord, Lord Hunt, also seeks to mandate local governing bodies in all trusts. I would like to cover this point first by saying that the schools White Paper sets out the department’s view that all trusts should have local governance arrangements for their schools. To respond to the query from the noble Baroness, Lady Chapman, about how I was going to deal with this point, we have committed in the White Paper to working with the sector over the summer as the best way to implement this.

Moving on to the amendments pertaining to parental involvement, I reassure the House that it is already our position that all trusts should have a minimum of two parents in their governance structure, as the noble Lord, Lord Knight, pointed out. Amendment 26 continues with a focus on parental engagement in the form of mandating all trusts and academies to have a parent council and specifying the composition, role and support required. Parental and community engagement serves an extremely important role and can have a large and positive impact on children’s learning, as we heard from the noble Baroness, Lady Chapman. An effective scheme of delegation should explain the trust’s parental and community engagement arrangements and how these feed into and inform governance at both trust and local level. The department’s Governance Handbook contains guidance for academy trusts on parental and community engagement.

However, as I said earlier, we believe that trusts are best placed to decide what engagement methods work best in the local context and—to pick up on the point made by the noble Lord, Lord Knight—at different points in the evolution of an individual trust. In addition, the place of parents in the governance of trusts will fall within scope of the planned discussions with the sector about the local tier of governance announced in the schools White Paper, and I am sure that the House would not want to pre-empt the outcome of that discussion at this point.

Amendment 27, in the names of the noble Lord, Lord Hunt, and the noble Baroness, Lady Blower, seeks to ensure that all trusts clearly set out the delegation of powers to their local governing bodies, and that delegation should include ensuring clarity of vision, ethos and strategic direction of the school, holding executive leaders to account, financial performance and ensuring that local voices are heard.

Some of the responsibilities set out in the noble Lord’s amendment are core functions of the trust board as the accountable body of the trust, which the board may already choose to delegate to local governing bodies or choose to retain at board level. As such, there is a risk of duplication and some confusion.

Amendment 38, in the names of the noble Lords, Lord Shipley and Lord Storey, introduces a clause similar, as the noble Lord, Lord Shipley, pointed out, to that of the noble Lord, Lord Hunt, and the noble Baroness, Lady Blower, to mandate local governing bodies, while also including membership and specific powers of the local governing body.

I would like to address both amendments by referring to my previous comments that we will be holding discussions with the sector on local governance arrangements and that we do not want to pre-empt those discussions by introducing requirements concerning local governance arrangements at this point.

The noble Lord, Lord Hunt, and the noble Baroness, Lady Blower, have introduced Amendment 39 to mandate the establishment of an independent scheme of arbitration to resolve disputes between a multi-academy trust and the local governing bodies of individual academies within the trust. It is far from clear that it would be a proportionate and good use of public funds to set up a formal scheme, and we would want to discuss with the sector how local governance arrangements could be effective.

I thank the noble Baronesses, Lady Chapman and Lady Wilcox, for their Amendment 52, which seeks to ensure that references to “parents” in the Bill also include different kinds of legal guardian. We agree that this is an important point, and I am pleased to say that this is already captured within the Bill. The majority of references to “parent” in the Bill are in Parts 1 and 2. Clauses 31 and 46 state:

“Other words and expressions used in this Part have the same meanings as in the Education Act 1996, unless the context otherwise requires.”


I am therefore pleased to say that all references to “parent” in the Bill already include different kinds of legal guardian.

For the reasons set out above, I ask the noble Lord to withdraw his amendment.

Schools: Biometric Technologies

Baroness Chapman of Darlington Excerpts

Monday 6th June 2022 Lords Chamber

[Baroness Barran (Con)]

The Government have extensive legislation in relation to the individual’s rights for their own data, particularly highly sensitive data such as biometric data. The Government have been clear that live facial recognition technology is not appropriate in schools and colleges.

[Baroness Chapman of Darlington (Lab)]

Some 65% of transactions are now cashless in schools, using biometrics, so the idea that we can turn the clock back is unrealistic. However, it is clear that schools must have confidence that these systems work, and there is a complex legal framework around the use of these technologies. Does the Minister think that it would be helpful to schools to have some crisp, clear guidance, so that these systems can be used safely and with parental confidence?

[Baroness Barran (Con)]

The noble Baroness is right. The department is working on the guidance and is aware that it needs updating. I am expecting it to be updated very soon. There will be some important changes within it, particularly in relation to the use of live facial recognition technology.