Children’s Wellbeing and Schools Bill

Lord Black of Brentwood Excerpts

Wednesday 10th September 2025 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I will speak to Amendments 430 and 436, to which I have added my name. I am grateful to my noble friend Lady Morgan for raising this issue at Second Reading, as I have been concerned about the ISI—previously the SIS—and former inspectorates of independent schools.

There are a number of queries about function, which I will probably theme as “visibility” and “responsibility” —in particular, building on what my noble friend Lady Morgan said, visibility for the Department for Education. While there is accountability, for the department itself there is a question about regulatory function. By that, I mean: do independent schools comply with the independent schools standards? The evidence on which the department is relying to perform its regulatory role, and then its potential enforcement action, in relation to schools is dependent on the information usually obtained through the ISI, which I believe my noble friend Lady Spielman will more ably outline as something that is more akin to a peer review system than to what we know through Ofsted.

With the independent sector, there is less visibility. State schools and numerically half of the independent sector—I would say the trickier half that are not in the association—sit with Ofsted. Therefore, the visibility at the centre in England is Ofsted, directors of children’s services, local authorities because of maintained schools and the DfE itself. Because of the academy system, there is an excellent team of regional school staff who know what is happening on the ground in their area. They are usually incredibly well informed; they are in close contact with the local authority, particularly on safeguarding; and they often liaise with the regional Ofsted teams. They really have a feel. As you sit there at the centre, you know you have an arm reaching out across England.

They know whether a school is struggling, particularly a secondary school. They know, “Oh, this one’s doing really well. This one’s probably going to get into good” —they just have that feel. You sit at the centre and think about the independent sector. As my noble friend Lady Morgan outlined, parents can call in. but you do not sit there with the same confidence, particularly with regard to safeguarding. We have had all kinds of serious historic problems—which I hope are a matter of the past—in both the state and independent sectors. So you have much less knowledge of and feel for what is happening and you are there as the regulator for independent schools, in a slightly different way from the state sector.

Therefore, there is more risk to having a Minister as the regulator, particularly because there is that lack of knowledge. I will give an example of where Ofsted has been really good over the past few years: in highlighting the issue of off-rolling. What applicability can that have to the independent sector? Let me give noble Lords some form of a situation. Consider a troublesome child in an independent school who has maybe been a bit violent. You call the parents in, you have the discussion and, because nobody wants to prejudice the child’s education or the reputation of the school, the child just disappears. However, they pop up again at another independent school, and the same thing happens.

I have read enough ISI inspections to know that it is unlike Ofsted, which can look at the data: “Where are the children? Where have they gone to? They have popped up at AP. They’ll be somewhere else in the system”. I accept that the unique reference number may help, but have we really got the rigour within the ISI system to spot a child like this, who probably needs much more significant intervention before they get to their teenage years, whose propensity not just for behaviour but maybe for serious behavioural issues has not been caught? How do you check, as DfE, whether what I have outlined is in fact the case—really, with an ISI peer review system?

Also, there is the fact that ISI is funded from within the schools it inspects, but says it maintains its independence from the ISC. It may be formally independent, but is it relationally independent? This is a network of individuals. It is a means to train as a head teacher of an association school or to become associate inspector. Does DfE have any role in the appointment of board members of ISI, whose inspections they rely on as regulator? It seems odd if it does not. Entry to ISI for a new school has usually been on the basis of a good Ofsted inspection, but, with the new Ofsted framework, do you need to be expected strong or of an expected standard to be eligible to join ISI? Who is going to determine that? DfE? ISI? ISC? It just seems unusual to have this system of entry that is not really managed by the department.

Sadly, I think that this is a failed market, and it is now a monopoly. It is a historical accident—I do not think there is malevolence in it—but we would not allow BUPA or private hospitals to operate like this; they are all inspected by CQC. Is it the case that, as the smaller inspectorate of this market that failed did not work, they were put straight into ISI without any of that entry criteria of going via Ofsted for a good inspection? I honestly do not know, because there is not the visibility.

So, whether or not ISI is transferred to Ofsted, as the amendment suggests, I think there needs to be greater quality control of the inspections by ISI, and those entrance criteria, and some sort of calibration of ISI inspections, particularly in relation to safeguarding. The harm done to children by failures of safeguarding is no respecter of social class, so ensuring the visibility of the rigour or otherwise of ISI inspections in this regard is vital. I have wondered and still wonder whether children in the independent system could, ironically, be more vulnerable due to this historical accident of an inspectorate ISI.

[Lord Black of Brentwood (Con)]

My Lords, I shall speak to Amendments 429 and 433 in the name of my noble friend Lord Lexden, to which I have added my own. It is a pleasure to see my noble friend back in his place. In Bills such as this, his authoritative and powerful voice on issues related to independent education is extremely important, and we should heed his advice. I declare my interest as chairman of governors at Brentwood School, and honorary president of the Boarding Schools’ Association and Institute of Boarding.

As my noble friend said, these two straightforward amendments do not in any way strike at the integrity of the Bill or seek to undermine what it is setting out to achieve. They are simply practical amendments designed to ensure that, as far as independent schools, which are a vital part of the education sector, are concerned, the legislation works as effectively as possible. As it stands, under the Bill the Secretary of State has the power unilaterally to require independent schools to have regard to guidance issued by the department. This is not an onerous requirement and, like my noble friend Lord Lexden, I have no problem with the principle. Indeed, I see much merit in it. Where I have a problem, and this is at the heart of the amendment, is the tendency of guidance, over time, to acquire statutory force, particularly if the courts become involved at any point. It is therefore vital that any guidance issued has proper scrutiny and that those affected have a chance to make their views known through Parliament.

As a veteran of years of legislation impacting on the media, I know only too well that seemingly innocuous guidance can sometimes have the most profound unintended consequences, especially where regulatory creep sets in. Without being unduly bureaucratic or slowing the process down in any way, this straightforward amendment simply seeks to ensure that in three key areas of vital operational independence for schools in the sector—curriculum, admissions and examinations—there will be proper scrutiny of any guidance to ensure that it is practical, does not add unnecessary burdens on schools or encroach on their independence, and above all is future-proofed. That is what noble Lords are here to do—to scrutinise—and this amendment ensures we have a chance to do it properly.

Again, Amendment 433 is about practicalities. As I know from my own experience, it is not uncommon for people joining a school or moving into specialist provision for the first time, with one diagnosis requiring special support, rapidly to be diagnosed with another underlying condition, identified by experts at the school. As it stands, this Bill will make it well-nigh impossible for schools properly and effectively to deal with that without either placing themselves in legal jeopardy or, worse still, having to remove the child from the school until the material change process is completed in order to comply with these regulations. That cannot be what we want for children in a highly vulnerable position, and it is causing great concern among independent special school experts.

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[Baroness Spielman (Con)]

Perhaps I could inform my noble friend that the oversight mechanism for ISI was first reduced a good many years ago when DFE asked it to remove the strand that involved monitoring a sample of inspections, and then it subsequently withdrew all the remaining elements. So, there is no longer any oversight model to my knowledge.

[Lord Black of Brentwood (Con)]

That is not the case, as I understand it, but perhaps we could speak about that afterwards.

Most importantly, the regime is effective because inspection is best conducted by experts who know the sector. The ISI is made up of people who understand how it works. That is particularly true for boarding schools, which have a very different operational model from the vast majority of schools that Ofsted inspects. The noble Baroness rightly talked about accountability, which is an extremely important point. Peer review, in this case, is the best way to produce some form of accountability, but we will have to differ on that.

ISI is also, as the noble Baroness, Lady Berridge, said, self-funding. So it is no burden on the taxpayer, which is an important point, especially in the current economic circumstances. Changing this tried, tested and effective system would be costly, placing additional burdens on Ofsted; it would be disruptive; and above all, it would almost certainly weaken standards of inspection because inspectors would be unfamiliar with the types of schools they were looking at, and therefore what issues of which to be mindful and aware.

I hear what the noble Baronesses say, but I do not believe the case for such a significant and expensive change has been made; nor, indeed, is there any clamour within the sector, or from parents and teachers, as far as I know, for radical reform of this sort. I hope the Committee will reject these amendments.

[Baroness Whitaker (Lab)]

My Lords, among several interesting amendments in this group, I support in particular Amendments 432A and 434 in the names of my noble friends Lady Blackstone and Lady Morris of Yardley. My reasons are exactly as I set out in our discussion of the previous group, so I will just sum up to my noble friend the Minister that we need to have an effective grip on unregistered schools, because of the undoubted harm to education and well-being being done—by some of them only—with impunity.