Schools Bill [HL]

Lord Judge Excerpts

Committee stage
Wednesday 8th June 2022 Lords Chamber

I hope the Minister can agree, particularly in the light of the references made by the noble Baroness, Lady Meacher, to the report by the Delegated Powers Committee, that Clause 1 and Clause 3 are singularly inappropriate and should be removed from the Bill. I know that she cannot agree that today, but I would like to have some time reflecting and to come back on Report in the autumn.

[Lord Judge (CB)]

My Lords, first, I owe an apology to the Committee because I did not speak at Second Reading as I had other commitments here. I hope the Committee will forgive me. I will therefore be brief.

I have never yet had the power, standing in this Chamber, to decide a dispute between the noble Lord, Lord Hunt of Kings Heath, and the noble Viscount, Lord Eccles, both of whom were trying to predict what I would think about this Bill. As is the way in court, the party who is about to lose has a compliment paid to him. I congratulate the noble Lord, Lord Hunt of Kings Heath, on his wonderful political naivety, his innocence and his willingness to take everything at face value, but the noble Viscount, Lord Eccles, was right that it does not surprise me at all that we have a Bill like this before us, and that it came as our first piece of legislation, because it is symptomatic of the habitual way in which the Executive produce Bills. I totally support the view that Clauses 1 and 3 should not stand part of the Bill. If we believe in the sovereignty of Parliament, this Bill is constitutionally flawed.

I will not quote from the various reports, but just ask noble Lords to look at the heading of Clause 1: “Academy Standards”. There is not a word in the whole of that clause that is about standards. The real heading of the clause should be “Executive Authority Over Education”. That is what it is. It contains a list of examples of powers that may or may not be exercised and so on and so forth, but it is not a limitation. It does not say, “Once we have got to all 18—or is it 19 or 20?—of them, that is it.” No, it states that they are

“examples of matters about which standards may be set”.

That is why Clause 1 should fail: it simply does not say what is on the package. It is a complete assumption of authority by the Executive. As if that is not enough, having assumed powers they then take on a Henry VIII power. Clause 3 starts off with “by regulations”. Heavens, we are still at the beginning of the Bill and we get to a Henry VIII clause in Clause 3. Noble Lords all know what a Henry VIII clause is; they have all heard me rabbit on about it. At this time of the evening I will not start again, but I could give your Lordships a wonderfully exciting time on how difficult Henry VIII found it to get his Bill through, and how in the end that Parliament, defying Henry VIII, did not give him the power to overrule statute. But here—good old modern Government and modern Executive: do what you like.

I just want to add a footnote about Clause 4. As the noble Lord, Lord Hodgson, has just arrived in his place—he cannot speak now, poor chap—perhaps the secondary legislation committee may have a word or two to say about Clause 4 and the issuing of guidance based on the regulations the Secretary of State has created in accordance with the powers in Clause 3. We will wait.

I would like to take longer, but for the time being these clauses should not stand part of the Bill. We should not overlook—I am considering the point made by the noble Lord, Lord Hunt of Kings Heath, quoting me—that the Bill has started in this House. It cannot be said that any of these proposals has already had the assent of the other place.

[Baroness Brinton (LD)]

My Lords, I intervene briefly and echo the support for all those who have spoken about the problems with the powers of the Secretary of State. I come back to a point made slightly earlier about the lack of detail in the Bill, which does not provide a framework for what should follow in regulation. Some of us who have followed the health brief throughout the Covid era know this all too well.

I will just give noble Lords one example of where things went wrong. Nothing gave any guidance to the Health and Safety Executive about how its responsibilities would be carried out. There were Covid enforcement powers for local authorities, Covid enforcement rules for the police and everything else, but whenever anyone went to the HSE to ask it what they should be doing, there was no role for it at all. In fact, on at least two occasions Ministers brought back regulations because they were not working in the field. One might say that in a pandemic mistakes will happen, but because there had not been a framework in the Coronavirus Act it was not clear what the Government were trying to achieve by those objectives.

The worry is that Bills keep coming to your Lordships’ House with so little detail in them—this may be the most recent and most egregious example—that it will be impossible to safeguard everything, and even for this House to do its job should we get to scrutinise them properly, because we just do not have the framework that the front of the Bill sets out for us.