Education (Environment and Sustainable Citizenship) Bill [HL]

Lord Blencathra Excerpts

Committee stage
Friday 3rd December 2021 Lords Chamber

Moved by

[Lord Blencathra]

1: Clause 1, page 1, line 17, after “must” insert “by regulations”

[Lord Blencathra (Con)]

My Lords, I rise to move the little amendment in my name and, since the noble Lord, Lord Knight of Weymouth, has also signed up to it, I can cut my speech down from one hour to no more than 45 minutes. I hope that I will not be too patronising in delivering it. This is a simple amendment. Clause 1(4) of the Bill—which I support—as it stands at the moment, states:

“The Secretary of State must give guidance about the provision of education”.


After “must”, I wish to insert the words “by regulations” —because, if one looks slightly further on, the proposed subsection (3) in Clause 1(4) says:

“The governing body of a maintained secondary school must have regard to guidance under this section.”


I am moving this amendment in a private capacity but—for the next couple of weeks, in any case—I am the chair of the Delegated Powers Committee, which looked at the Bill, as it looks at all Private Members’ Bills. We do not change our guidance for private Members any more than we do for the Government. When we look at Bills, our normal rule is that, where guidance is advisory, we suggest that it should be laid before Parliament but does not have to be debated—it does not need the negative or the affirmative procedure. But when it is guidance that one “must have regard to”—as we increasingly see from government these days—we say that, in effect, it is almost mandatory, and there are legal consequences for the person or body if they do not have regard to it.

In our report, we say:

“Although a duty to have regard to statutory guidance does not imply a duty to follow it in … all respects, we have in recent years observed that a person or body required by statute to have regard to guidance will normally be expected to follow it and will in practice normally do so unless there are cogent reasons for not doing so. And yet this guidance is subject to no parliamentary scrutiny at all.”


We are therefore suggesting that the Secretary of State makes the guidance by way of regulations that are subject to the negative procedure. That is not a heavy burden on the Secretary of State or the department. As we know, most negative-procedure SIs go through on the nod; they are very seldom debated or prayed against. I cannot imagine any side of the House wishing to pray against guidance in this regard, but the power exists there, if the House wishes to exercise it in certain circumstances.

I will give noble Lords one more minute of technical stuff. How would this actually take effect, when I am only inserting the words “by regulations”? I am advised by our lawyers that the guidance would in fact be covered by Section 210 of the Education Act 2002, which provides that:

“Subject to subsections (5) and (6), a statutory instrument which contains any order or regulations made under this Act by the Secretary of State and is not subject to the requirement … that a draft of the instrument be laid before and approved by a resolution of each House … is subject to annulment in pursuance of a resolution of either House of Parliament.”


Merely putting in the words “by regulations” would mean that any guidance that the Secretary of State produces on this measure in future would be caught by that provision and subject to the negative procedure. In essence, that is it.

I am very grateful to the noble Lord, Lord Knight of Weymouth, for signing up to the amendment. I do not think that we will have a highly contentious debate for the rest of the afternoon.

[Lord Knight of Weymouth (Lab)]

My Lords, although it is my Bill, I thought that I could probably take advantage of Committee and speak twice. But I take this advantage to outline why I am in support of the noble Lord, Lord Blencathra, in his very helpful amendment. When I put together the original wording, I stole it from the Act that he quoted, and I perhaps could have paid more close attention to Parliament’s role. I am very grateful to the Delegated Powers Committee for its report and consideration.

The noble Lord was kind enough to send me an email on Wednesday. When I received it, it was with a little trepidation as to what he might have to say about how he would proceed today. It was of huge reassurance when he said that his amendment is not a re-emergence of the old Eric Forth and David Maclean “wreck a Private Member’s Bill on a Friday” scenario. I am grateful for the noble Lord’s support for the Bill and for the way in which he has gone about this.

One reason for wanting to speak early in the discussion of this amendment is to have an opportunity to ask the Minister a couple of things for her to consider in her response. I think the noble Lord, Lord Blencathra, agrees that there is sometimes a danger of it feeling as though the Department for Education, because it makes a lot of regulations, is reluctant to go down the road of guidance being in the regulatory form. My question to the Minister is: is there a good reason why we should not have this sort of guidance in regulation, as opposed to a good reason why, because it is important?

This is also an opportunity for me to ask the Minister whether the announcement made by the Secretary of State on 5 November, in the context of COP 26 in Glasgow, changes the Government’s position as we heard it at Second Reading. We had a different set of Ministers then and a slightly different situation. The Secretary of State made his announcement in the foreword to the document that he has then consulted upon. He said:

“Education is critical to fighting climate change. We have both the responsibility and privilege of educating and preparing young people for a changing world—ensuring they are equipped with the right knowledge, understanding and skills to meet their biggest challenge head on.”


It was almost as if he had been listening to the Second Reading debate. I was so encouraged to read the consultation document and hear what he had to say, and to see that there is an emphasis on climate education, green skills, the education estate and the supply chain. Indeed, I loved the idea of the national education nature park and the climate leaders awards, which are part of what Secretary of State is proposing.

Can we push the department that little bit further on the climate education side of things, so that we get this guidance and ensure that there is more than just a voluntary approach from our schools to delivering climate and sustainability education, which is what the Bill would do? Also recently—I think it was last week or the week before—we had Nadia Whittome introducing her own Private Member’s Bill on this subject. The subject is not going to go away, so I strongly encourage the new ministerial team to give it their own encouragement. It might not be now; I would be really delighted to meet the Minister to discuss whether we can do anything with this Bill to get it into the national curriculum. However, I want to hear from her whether there has been any slight shift in her position.

--- Later in debate ---

The noble Lord, Lord Adonis, rightly raised important issues of citizenship education. I will not attempt to address all his technical points, as I am with the noble Lord, Lord Watson, on his superior knowledge of education legislation. But we expect schools to use their expertise and understanding of their pupil cohort to develop the right approach towards citizenship education for their particular school. Active citizenship, which I know the noble Lord, Lord Adonis, supports, is at the heart of the programme. At key stage 4 in particular, pupils should be taught about parliamentary democracy and key elements of the constitution. I thank all noble Lords for their contributions today.

[Lord Blencathra (Con)]

My Lords, I am grateful to all noble Lords who took part in this short debate. I must admit I felt a bit guilty, in that the Bill was due to go through on the nod a week last Monday and, when I put down the amendment, I knew it would kick it back to a Friday. I was worried then that the Bill would fall altogether, but I am grateful for this chance to have a discussion today. Although it has ranged slightly wider than I had anticipated, there is no harm in that. I thank the noble Lord, Lord Knight of Weymouth, for his support and all noble Lords who mentioned COP 26. When I put on my face mask today, which I acquired when I was in Glasgow a couple of weeks ago, I had no idea that COP 26 would be so relevant to today’s debate.

I also thank the noble Lord and the Minister for mentioning the Department for Education’s attitude to guidance. I am grateful for some of the things that she said, but some things the department had been doing before her time, in the way it issued guidance and the attitude it took to laying it before Parliament, were contrary to what she informed of us today. I am referring to the school uniform guidance. I moved an amendment saying that it should be laid before the House as a negative procedure, as regulations. The answer from the department—I paraphrase slightly and I hope I am not exaggerating for effect too much—was, “No, we are not going to bother you with that. We issue thousands of pages of guidance each year, and we have always got away with not laying it before Parliament; why would we create a precedent now of troubling your little heads in Parliament with this guidance?” The second excuse was “A lot of our guidance changes very regularly and we cannot trouble Parliament with it”. The school uniform guidance is unlikely to change regularly and it is unlikely that this guidance will change regularly. The same argument applies: it should be laid before Parliament in the negative procedure. Even if it does change regularly, the department has to write the guidance. There is no problem in laying that guidance as a regulation through the negative procedure. Hardly anyone would object to it 99.9% of the time.

Going slightly off piste, like the noble Lord, Lord Adonis, the final thing I have to say is that my amendment to this Bill was small and I am grateful that everyone agrees with it. Next Tuesday, the House will be looking at the Health and Care Bill. In my three years as chair of the Delegated Powers and Regulatory Reform Committee—my committee has not looked at it officially yet—I have never seen a Bill with such appalling delegations of power. There are about 150 delegations. It is a skeletal Bill, with no guts or detail to it. There is disguised legislation, where regulations are called guidance, protocols or directions—anything to avoid them coming before Parliament. I hope noble Lords participating in that Bill, irrespective of its other merits, look at all the delegated powers in it and give them proper consideration. In thanking noble Lords for their contributions, I am delighted that my amendment finds favour with the Committee.

Amendment 1 agreed.