Schools Bill [HL]

Lord Judge Excerpts

Report stage & Lords Hansard - Part 1
Monday 18th July 2022 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I echo and support the noble Lord, Lord Baker. I do not understand why the Government are in such a hurry to have a Third Reading on the Bill when they have already agreed to take out the first 18 clauses. Those clauses will be subject to a review being conducted by the Minister. She will need to keep to a very ambitious timetable, because essentially this is about the situation of how all schools, under the White Paper produced earlier in the year, are to become academies by 2030. The matter that the Minister’s review is looking at is: what should the accountability system be for thousands and thousands of schools?

Even if the Minister reaches a conclusion by the end of September, a full consultation has to be held. At that point the Government have to make decisions. They then have to give instructions to parliamentary counsel to redraft Part 1 of the Bill. That is surely going to take many months indeed. I think the noble Lord is ambitious in thinking that this will be back with us in the spring. It could take very much longer. On that basis, why on earth are the Government going for a Third Reading? There is absolutely no need for it until they see what they are going to do to make the changes.

A second point I would like to make comes back to the points that the noble and learned Lord, Lord Judge, made at Second Reading and in other debates, and the noble Lord, Lord Baker, referred to it. The Government have sought to ride roughshod over this House in the nature of the drafting of the Schools Bill. We must set down a marker that this is unacceptable. I believe that we should not give this Bill a Third Reading until we have much greater assurances that when these new clauses come back—if they come back—we will go through a full process of Committee, Report and Third Reading before we can say that we have dealt with them satisfactorily.

[Lord Judge (CB)]

My Lords, we understood that Third Reading was going to happen this week. I drafted a Notice of Motion for the House to decide whether Third Reading should be heard at all. I showed the Notice of Motion to the Chief Whip, he saw it and it was perfectly plain that, if the House agrees, we should not take Third Reading at all until we know exactly what is in the Bill. I happen to agree with the noble Lords, Lord Baker and Lord Hunt: whether or not we leave the Third Reading in Forthcoming Business, the House will also have to consider a Notice of Motion that we should not consider Third Reading at all.

[Lord Grocott (Lab)]

My Lords, sitting where I am, I have repeatedly felt genuinely sorry for the Minister, who has done so much to try to improve the Bill or respond to concerns that have been expressed. But she must have realised by now that the Bill is beyond repair. If it does re-emerge, it will do so in such a different form from the one that started out that it will be tantamount to being a new Bill. In our attempts to improve it, I am reminded of the no doubt apocryphal British Rail announcement that the Wednesday afternoon train to Crewe would now run on Thursday mornings and would not stop at Crewe. That is the situation that this Bill is in. I think that the Minister can honestly and with real integrity report back to her political colleagues in the Commons that we really need to stop trying to amend a Bill that has gone way beyond that stage and that the last rites need to be performed and a new Bill brought before the House.

Schools Bill [HL]

Lord Judge Excerpts

Report stage & Lords Hansard - Part 1
Tuesday 12th July 2022 Lords Chamber

[Baroness Barran (Con)]

If I may, I would like to respond to my noble friend’s other points. It is extremely important, given that our debate is a matter of public record in Hansard, that assertions that are made in the House are accurate. With the greatest respect to my noble friend, I am very happy to share with him—and it is on GOV. UK—the list of people who are on the expert panel. I am very happy to talk about—and will be in a few moments, I hope—the extremely extensive engagement that we plan for over the summer. I do not think it is helpful to assert things that are not accurate about how the Government are approaching this Bill in continuing to get it to a good place. I will take any time with any Member of the House to make sure that there is no confusion about how we are approaching this.

On the regulation of schools, these standards are about the regulation of trusts; they are trust standards, not school standards.

[Lord Judge (CB)]

I want us to pocket the clauses that the Government are going to give way on. Let us get rid of clauses that are unacceptable.

We are all rushing around trying to find a solution. I draw the Minister’s attention to paragraph 8.132 in the Companion, which I would like everyone sitting here today to consider. The noble Lord, Lord Grocott, is right: the present arrangement means that there would be no Report stage on the new clauses, and there would be no Committee stage on the new clauses. There will be a Committee process, which is quite different, and which will culminate in the ping-pong arrangements. The Companion states:

“Other bills may, on motion (which is debatable and of which notice is required) moved at any time between committee and third reading, be recommitted to a Committee of the whole House or Grand Committee in their entirety, or in respect of certain clauses or schedules. This course is adopted when it is desirable to give further detailed consideration to the bill or certain parts of it without the constraints on speaking which apply on report and third reading; for instance: when substantial amendments are tabled too late in the committee stage to enable them to be properly considered; where there is extensive redrafting; or where amendments are tabled at a later stage on subjects which have not been considered in committee.”


That seems to me to cover all the new clauses that may be put into the Bill as and when it gets to the Commons—if it gets to the Commons. We must not get to Third Reading; we must make any application, or move any Motion, before Third Reading. I would love to be an expert in procedure but I am not, but I think that may be an answer to the problem that is obviously vexing a number of Members of the House. There could be a recommitment of the amendments and we would then go to Committee stage.

[Lord Cormack (Con)]

I am grateful to the noble and learned Lord. In view of the extraordinary and frankly unprecedented mess we are in with this Bill, would it not be sensible to adjourn the House so that there can be conversations between various key people? It might indeed be far better, neater and tidier—and, in the long run, far speedier—if the Bill were abandoned and a new one brought in when we have a new, effective Government in power.

--- Later in debate ---

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the amendment proposed is to insert the words on the Marshalled List at Clause 1 on page 2 at the end of line 18. If I am wrong, I apologise.

[Lord Judge (CB)]

My Lords, I will speak in a moment to Amendments 4, 7 and 9, but can I go back to the discussion that happened a few moments ago and the concern of the noble Lord, Lord Grocott? I will again read paragraph 8.132 of the Companion: “Other bills”,

so one that has not been referred to a Select Committee or Joint Committee,

“may, on motion (which is debatable and of which notice is required)”—

that means assuming the usual channels cannot resolve the problem in a way that is satisfactory to the House—be

“moved at any time between committee and third reading”.

We are still on Report and will be at the end of today, so we will not have reached Third Reading. Although I do not claim to be an expert, I think it is open to the House to consider the remedy available at paragraph 8.132 of the Companion. That is what I would like the House to do and what I expect the usual channels will do. I should assert that, as Convenor of the Cross Benches, I am not a usual channel for these purposes because I do not have a party.

Now to the Bill. Of course, we are grateful to the Minister. I feel very concerned that somehow people may think the anxiety of the House is a reflection on her. I can do nothing except on behalf of myself thank her for the way in which she has listened. I have an awful suspicion—and she cannot confirm or deny this—that, if she had her way when she was in the department, we would not have ended up with the Bill in this absurd situation.

The provision in Clauses 1, 3 and 4 is extraordinary. I will go through what I said again when we were speaking about this last. The two words “Academy standards” are a clear misrepresentation of what Clause 1 is about. It is simply a skeleton provision from which the Secretary of State can pick whichever particular provisions he wishes to invent for himself; he is not bound by any of them, and he or she can write them for himself or herself.

Clause 3 is Henry VIII. The House has listened to me on Henry VIII a number of times so I will not go on about it, but I hope noble Lords have all noticed that the Bill has a particular quality, in that it has two Henry VIII clauses: Clause 3 and Clause 66. Removing Clause 3 simply removes something that is completely unnecessary. Clause 66 will no doubt continue because the departmental computer will just produce one at some stage in the Bill. I have never before come across two Henry VIII clauses in the same legislation—so we have Henry XVI, and the Bill has a particular record apart from all its other flaws.

It also has a provision in Clause 4 which is a shameful, pernicious new way for central government to obtain power: the issuing of guidance. When the Government and department of the day issue guidance, those to whom it is sent answer to it. In the Bill, there is a provision that enables the Secretary of State to issue a compliance direction anyway. So we have a new form of acquisition of central power, ultimately in No. 10 Downing Street, which we have shamed the country with by passing and enacting the Elections Act. It is exactly the same provision.

Any one of those three would be great from the point of view of central government, but we have all three together. It is a rather poisonous cocktail from all our points of view. It is like supping Irn-Bru, only on stilts. It is the most amazing combination of powers. That is why these clauses should fail.

I am concerned, as has been expressed by others, but not about the way in which the Conservative Party is going to sort itself out. I am concerned about that for the sake of the nation, but not for the sake of the Bill, because, as has been arranged so far, when the clauses go back in whatever form they are amended to the Commons—there will be new clauses—there will be no Second Reading or Committee here. We must therefore look at the provision of paragraph 8.132.

Something else worries me even more. The Bill started here, and this Minister was sitting here and able to hear observations from all sides of the House about the absurdity and the rather alarming features that discolour Clauses 1, 3 and 4. We have got where we have got to, and these amendments will pass in due course. But the chilling feature is that, if the Bill had happened to start in the House of Commons, I have no reasonable doubt that those provisions would have come to us as drafted, after peremptory debate. The Minister would then have had no option but to say, “Well, it’s gone through the Commons. What are you doing interfering with its wishes?” Of course, we would have gone on, but there comes a time when the Commons has to win.

It is pure luck that the power grab in these clauses has come before this House and that we have had this Minister here to lead her department to the obvious and sensible conclusion. But our present constitutional arrangements mean that only the coincidence that the Bill happened to start here gives us relief. If it had started in the other place, I have not the slightest doubt that this is the Bill that we would have had to consider. I find that chilling, because we all know that the opportunities for this House to change legislation that passed through the House of Commons are very limited. That is the state that our constitution has got to in 2022, and it is the most alarming feature of these clauses.

[Lord Mackay of Clashfern (Con)]

My Lords, it is time that we made some progress. The noble Lord, Lord Knight, proposed that the Bill should go forward on Report, and the Labour Chief Whip agreed. But we are getting into doing that without having passed a Motion, so I would like it to be made clear that we will now consider the Bill on Report and deal with whatever difficulties there are as that goes on.

--- Later in debate ---

Moved by

[Lord Judge]

4: Leave out Clause 1

[Lord Judge (CB)]

I beg to move Amendment 4, and I think the House might be quite pleased to agree to it.

Amendment 4 agreed.

--- Later in debate ---

Moved by

[Lord Judge]

7: Leave out Clause 3

--- Later in debate ---

Moved by

[Lord Judge]

9: Leave out Clause 4

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.

Higher Education and Research Bill

Lord Judge Excerpts

Ping Pong (Hansard): House of Lords
Thursday 27th April 2017 Lords Chamber

To conclude, the Government fully share the aim of increasing the number of students and young people registered to vote. We agree with noble Lords that it is vital that we have a healthy democracy that works for everyone, and that the views of students and young people are reflected in a democratic process. I firmly believe that these amendments will help achieve this goal and I beg to move the Motion.

[Lord Judge (CB)]

My Lords, I will speak very briefly to Motion F. The original Bill produced an appeal system that was far too narrow, and the amendment that I and my noble friend Lord Lisvane proposed suggested that it should be wider. We used words which were reflective of advocacy rather than law, and argued that the ground of appeal should be on the basis that the decision was wrong. That view appealed to this House. We have reconsidered it and discussed it with the Secretary of State and the Minister. The amendment now proposed by the Government makes much better law and, given that, I support it.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I declare my interests as in the register. I am very grateful to the Government for tabling Commons Amendments 15A and 15B and put on record my specific thanks to the Ministers—the honourable Jo Johnson and Chris Skidmore—along with their officials, for their time and willingness to find a compromise following the adoption by the House of my amendment on Report. This issue has been the subject of powerful advocacy by my honourable friend Paul Blomfield MP, who has done much work on the registration of students to vote, and by organisations such as Bite The Ballot and by the APPG on Democratic Participation.

The voice and views of the Association of Electoral Administrators was extremely helpful in supporting my case, and I have to say that the chief executive John Turner expressed some surprise that the Minister suggested on Report that the association did not take a positive view. UUK has been helpful to me personally, although it is divided on the issue. I trust that it will now do everything possible to ensure that all universities comply with this new obligation at the earliest opportunity.

I well understand that we all have the same aim: to enable the greatest number of students to register to vote and thus shape the future of this country so that it works for young people. It will probably not be possible for ministerial guidance to be published before the enrolment of students this autumn, so I hope that the Minister in office, whoever it is, will draw the attention of higher education institutions to the numerous examples of best practice that exist, including those cited by the Minister today. I am very proud of what Bath has done in these endeavours. I am grateful to the Minister for suggesting what will be in the guidance, which is very welcome, but could he say when the guidance is likely to be published and when the Government, if they are a Conservative Government, might expect higher education institutions to comply with the new obligation? Although we might not have another general election for perhaps five years, there will be local government elections in England in May 2018 and my fervent hope is that all HE institutions will have a system in place by then.

I reiterate my thanks and look forward to working with the next Government to ensure that the maximum number of students register to vote so that not only their voices are heard but their views are expressed in the ballot box, thus enabling them to exert maximum influence, as they should, in the democratic life of this country.

As I will not speak again on this Bill, I wish to say that I too think the way in which all Benches have co-operated and collaborated on it has been extraordinary and very welcome. To be partisan for a moment, great thanks go to my noble friend Lord Stevenson and the support he has received from Molly Critchley. I understand that my noble friend is shortly to step down from the Front Bench. He has done the most superb job, not just for the Labour Benches but for the House as a whole, and I look forward to working with him on the Back Benches.

Higher Education and Research Bill

Lord Judge Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 8th March 2017 Lords Chamber

Moved by

[Lord Judge]

117: Clause 46, page 27, line 24, leave out from “appeal” to end of line 27 and insert “shall be on the grounds that the decision was wrong.”

[Lord Judge (CB)]

My Lords, I declare my interests as the commissary for the University of Cambridge and a visiting professor at King’s College London. I regard Amendment 123 as consequential on Amendment 117. The amendment arises in the context of what was described just a few minutes ago as the last-resort power, granted by Clauses 44 and 54 of the Bill. The OfS has power to revoke the authority of a university to grant degrees and to deprive the university of the name and title “university”. They are, either or both, processes that would destroy the university in question.

The Bill envisages an appeal process but, certainly in relation to these powers—in my respectful submission, destructive powers—it would be depressingly inadequate. The objective of Clause 46, and Clause 56 as amended, is to provide an appropriate remedy for such a destructive power. A remedy is provided in the Bill: a form of judicial review. I am not sure that many in this House will often hear a former judge deride a remedy by way of judicial review, and I am not deriding it—I am saying that it is not good enough, because a judicial review has limitations. It provides for an assessment of the process for correcting errors, but it is not, and never has been, a remedy that enables the merits, or otherwise, of a particular case and decision to be considered. In other words, it does not provide for a full appeal from the decision—rather a review of the way in which the decision was reached.

My argument is very simple: that simply will not do here. You cannot win a judicial review, and the grounds provided in the present Bill do not enable you to provide an argument based on this simple proposition that the decision was wrong—that’s it—and it should. A step of this kind, which can lead to the destruction of a university, is so serious that the university should be entitled to go to the First-tier Tribunal with the simple argument, “This is not good enough. Your judgment is wrong. You have made a premature decision. You have made a decision that is too severe”. None of those arguments is encapsulated in the present basis for appeal that is provided.

A university can argue that the decision was wrong in law, but that is not much of a concession, since being wrong in law is being wrong in law. It can argue that the decision was unreasonable, but unreasonable does not mean wrong. Two perfectly reasonable people can disagree. Both would be reasonable; neither would be unreasonable. To be unreasonable in the law—and I hope that I shall be excused for using this sort of language—you have to be able to show that the decision was batty, which is not quite what we have in mind here. As to the facts, that does not help very much, because what matters is the inference that you draw from the facts, and subsection (2)(c) of this clause, listing the present grounds, underlines how limited the basis of appeal would be.

The argument is that we are dealing with the issue of last resort—the final destruction of a university and an institution’s ability to grant degrees—and we are saying that, at best, you are entitled to a judicial review. I speak of course in the context of the university, but it is just worth bearing in mind that we are also talking about something that affects the students at that university as well as the staff and those who have left that university, particularly those who have left it in the last few years, on whose CV there appears a first class honours degree from X failed university. From their point of view, it would be just as catastrophic as it would be for the university itself.

Finally, we must hope that these powers will never be used and that the issue will never arise for decision. If it does arise, it will be a very rare occasion. If what we are considering is an issue of this importance, which will, one hopes, occur only very rarely, we must make a proper remedy. I beg to move.

--- Later in debate ---

[Lord Young of Cookham]

The noble and learned Lord qualified his question with the remark “with the resources at my disposal”. The answer is that I do not have that answer at my disposal, but I will of course make inquiries and write to him.

[Lord Judge]

My Lords, we have just heard an utterly reasonable argument but, with great respect, it is wrong, and that is the issue the amendment is intended to address. Reasonable decisions may be wrong. Looking at this issue in depth, one hopes that the power will never have to be exercised. However, if it is, it will be an extraordinary power wielded by the OfS and it will not be open to the university in question to say, “We agree. All your facts are well set out but you have reached the wrong conclusion”. That seems to be a ground of appeal that ought to be available.

We need not worry that amending the clause in the way we have respectfully suggested will lead to a huge torrent of cases. We hope that there will be no case at all but, if it arises, the straightforward way to go about it will be to say to the tribunal, “We are arguing that this was wrong”. The tribunal is well able to assimilate the reasons why the OfS reached the decision it did, and will hear argument on behalf of the university. I propose to ask for the opinion of the House.

--- Later in debate ---

Moved by

[Lord Judge]

123: Clause 56, page 36, line 9, leave out from “appeal” to end of line 12 and insert “shall be on the grounds that the decision was wrong.”

Higher Education and Research Bill

Lord Judge Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Wednesday 18th January 2017 Lords Chamber

Amendment 159 would remove that last option. As drafted, the provision could mean that the OfS, whose own action is being appealed, might be the body that took the final decision—in effect, as a judge in its own cause. So it would be very helpful if the Minister could explain why this will not be so and tell us whether any further route of appeal exists once the First-tier Tribunal remits the decision to the OfS in this way. I beg to move.

[Lord Judge (CB)]

My Lords, I support the amendment. I shall not repeat how subjective the test is,

“if it appears to the OfS”—

but it is entirely subjective. These are very wide-ranging powers that are envisaged; they are very serious powers that will be exercised. Of course, as the Minister said on 9 January, they are powers that will have to be exercised reasonably, not on a whim, and would be subject to a judicial review—but a judicial review of such a decision would succeed only if the decision made by the OfS were unreasonable in a particular legal sense, so that no body exercising these particular powers in this situation could have exercised them in this way. It will not succeed merely because the decision is wrong.

If I may make it more personal, two reasonable people can disagree with each other and both can still be reasonable. If the Minister disagrees with me—perhaps he will, perhaps he will not—I may respectfully suggest to him that he is wrong, but I would certainly not suggest to him that he was being unreasonable. It is a point of view. There is a great deal to be noticed in the context of what the reasonable exercise of powers actually amounts to.

These amendments are designed, as I see it, to secure from the outset that the office must believe that there are reasonable grounds for its decision to deploy its statutory powers. Framed in this way, the grounds for relief can themselves be examined. Although there are passages in the schedule which deal with that, it would encourage greater thought and analysis being given to any process of deploying the draconian powers that are being vested in the office.

[Lord Watson of Invergowrie]

My Lords, I do not rise to add anything to the remarks of the noble Lord, Lord Lisvane, and the noble and learned Lord, Lord Judge—I am not able to do so; the points they make sound very sensible and backed up with legal opinion. I hope that the Minister will take them on board. I rise on an amendment on which I and my colleagues have no involvement to make the more general point that I am sure that the Minister is going to say, “This is all very well, it sounds fine, but it’s not necessary—in the best of all worlds it will all be fine”. It is getting very tiresome. This is not the way in which legislation is meant to progress in your Lordships’ House. There have been absolutely zero concessions so far from the Government since the Bill came to your Lordships’ House. It is inconceivable that anyone outside looking in would accept that every amendment put forward is unnecessary or does not fit in with the Bill. That cannot be the case. I say in all good faith to the noble Viscount the Minister—and to the noble Baroness the Minister—that I am not making a political point as it is not one of my amendments but, with so many amendments on this Bill, they cannot all simply be turned down flat. I hope that he will bear that in mind, if not on this group of amendments then as we move forward.

Higher Education and Research Bill

Lord Judge Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 16th January 2017 Lords Chamber

[Lord Norton of Louth (Con)]

My Lords, Amendments 65 and 510 in this group were tabled by the noble Lord, Lord Lisvane, who is unable to be with us today. I wish to make a few comments in support of those amendments.

The concept of quasi-legislation—the generation of rules and guidance by public authorities—is not new. However, the use of such quasi-legislation appears to be growing: it is convenient to government, it provides some degree of flexibility and it may also put it beyond legislative scrutiny and approval unless provision is made for such scrutiny and approval.

This Bill is of extreme importance. It creates a body, the Office for Students, that is much more powerful than HEFCE. The functions that it draws together are quite substantial and extensive. They enable the OfS, essentially, to shape the nature of higher education. That in itself raises issues which we will be discussing further. However, here, under Clause 2(2), we have the power to give guidance but without any transparency and with no parliamentary involvement. That matters, especially in the context of this Bill. Through the power to give guidance, the Minister may, effectively, usurp the power of the OfS. I am sure my noble friend the Minister will say that guidance will be rare and benign, but there is nothing to stop a future Secretary of State with less than benign intent using the power on a scale that is significant, both quantitatively and qualitatively.

As the noble Baroness has just said, this provision has been commented on by the Delegated Powers Committee. It stressed that there is no parliamentary scrutiny of the guidance and no requirement for it to be published. In response to the Government’s defence of the provision, the committee goes on to say:

“We are wholly unconvinced by the Department’s reasons”.


That includes, as I have already stressed, the fact that the remit of the OfS goes far broader than HEFCE, and the guidance that the Minister can give to HEFCE has no statutory basis.

The committee also makes the point, of course, that the requirement for the OfS to “have regard to” guidance rather limits it. The Office for Students could, if it had cogent reasons, discard the guidance. However, there would have to be compelling reasons for that, and, as the Delegated Powers Committee points out, under Clause 71(1), the Secretary of State has the power to give the OfS “general directions” about the performance of its functions.

There is a powerful case for ensuring there is parliamentary scrutiny and engagement in respect of the power to give guidance—that is the purpose of the amendments tabled by the noble Lord, Lord Lisvane. Other provisions in the Bill are clearly Henry VIII provisions. The measure is extensive in terms of the concept of quasi-legislation. I am sure we will be coming back to this on several occasions during the passage of the Bill. However, I look forward to my noble friend’s response acknowledging the significance of the powers that are being confirmed and I look forward to hearing what the Government plan to do about it.

[Lord Judge (CB)]

My Lords, I support what has just been said by the noble Lord, Lord Norton, and draw attention to my own interests in the register. We have a perfectly clear piece of legislation in Clause 2(1), in which Parliament tells the OfS what it must do and what it must have regard to. We then have the creation in Clause 2(2) to Clause 2(6) of guidance which has absolutely no parliamentary scrutiny, whether before or after the Secretary of State chooses to issue that guidance. It looks like legislation, because it is contained in Clause 2, but it is not legislation and it should be.

There is a remarkably strange feature if we turn 44 pages onwards to Clause 71, where we have the power granted to the Secretary of State to give directions. Of course, that is going to be a necessary ingredient of the Bill. The strange thing about it is that in the directions, Clause 71(2) is in identical terms to the guidance authorisation in Clause 2(3); Clause 71(3) replicates Clause 2(4); and Clause 71(4) replicates Clause 2(5). In other words, there are identical provisions in these two clauses: one creates the power in the Secretary of State to give guidance, the other gives the Secretary of State, after Parliament has agreed, the power to issue directions.

As far as I can see, there is no indication about the criteria which should be applied as to whether a particular directive by the Secretary of State should be treated as guidance or legislation. The fact of the matter is that there is now going to be power to give guidance with no statutory scrutiny and power or authority to give directions which will be subject to statutory scrutiny. There is no logical reason why we should have such an absurd situation. The amendment proposes simply that the guidance should be brought before the House at some stage in the process so that the House can have a look at it. We should have a chance to consider guidance issued by the department in this influential new arrangement.

[Baroness O'Neill of Bengarve (CB)]

I support the amendment. I think there are wider reasons for feeling that not everything can be well done by guidance. Among other things, guidance sits there in the cupboard, so to speak, and there is no reason for the Executive or Parliament to review it until somebody is tripped up in an unfortunate way.

Guidance seeks a sharper definition between what may and may not be done—between compliance and infraction—than is probably feasible. There is much to be said for a somewhat more formal procedure that will make it clear what has parliamentary backing, because it is a statutory instrument, and what does not. Excessive reliance on guidance would weaken the structure of the Bill and create a degree of persisting uncertainty. People are frequently being tripped up by guidance of which they have never heard which lives in an obscure place. That is unnecessary.

Children and Families Bill

Lord Judge Excerpts

Tuesday 17th December 2013 Lords Chamber

[Lord Judge (CB)]

My Lords, to add to a maelstrom of lawyers is not a particularly bright idea at this time in the afternoon, but I declare an interest as I was a member of the Court of Appeal that decided, when we decided it, the case of J. The case was brought to us so that the threshold test could be clarified: that was the only purpose of it. It was brought by a local authority, deliberately focusing on the single fact of possible perpetration and omitting any other consideration, so that the issue could go to the Supreme Court and that five previous decisions of the House of Lords could be analysed once more. We followed the previous decisions of the House of Lords and immediately gave leave for appeal to the Supreme Court—a very unusual step for the Court of Appeal to take—because it had to be addressed in that court.

Once it is established that an individual living in a household in which a child or children have been killed or seriously injured was one of the possible perpetrators of the injuries, but the evidence is not sufficiently clear for the court to identify who is actually responsible, where does that leave us? It leaves us with the possibility that the individual was, indeed, responsible for the death or those injuries or some of them. That seems to me to be a stark fact, but there is a further consideration. Often the ill treatment has been repeated; these awful occasions are not, generally speaking, a one-off. Generally, what you have is a series of repeated assaults on the child that culminate in an attack in which the child sustains fatal injuries. J was such a case. What that little baby had gone through in three weeks is beyond description.

Therefore, in many of these cases, although not all of them, the person who has not actually caused any injury has undoubtedly been aware of the fact that the child has been suffering. It is not just that the child cries—we all know that babies whinge and cry, some more than others—but this was a child with evidence on its little body of injury. Indeed, although these cases are largely confined to the family court, one needs to stand back and wonder why on earth criminal prosecutions under the Domestic Violence, Crime and Victims Act are not undertaken—not simply to establish who is guilty of the murder or manslaughter, but, where the evidence is uncertain, to demonstrate that both, on any view, are culpable in the sense that they have allowed the child to be bullied and abused in the way that has culminated in its death. If there had been a criminal prosecution and a conviction, it would not have occurred to anyone to say, “Oh well, that conviction is irrelevant to the threshold test that the family court has to ask in relation to another case”.

If there are combinations of events like those that have happened, it seems to me that they raise issues of great relevance to the threshold test in family proceedings. It is not a question of removing a child from a family on the basis of suspicion alone; it is that the threshold test should be allowed to be tested by reference to all the relevant evidence. If all the relevant evidence reveals that the threshold test should be passed, then you move on to care proceedings. For me, the idea that we should exclude from the threshold test possible relevant material is not how justice is done.

[Lord Hope of Craighead]

My Lords, I hope that I may be forgiven for adding one more lawyer’s speech to those which have already been given, and particularly that the noble Baroness, Lady Howarth, will forgive me for doing this. My reason for wanting to speak is that I presided over the case of In re J in the Supreme Court. I think that the noble and learned Lord, Lord Judge, expressed great concern that the issue was being brought before the courts on a hypothesis; I think I am right in saying that he said that it is not the business of the court to judge hypothetical cases. We took the view that we should decide the case on the material that we were given, but it is right to stress, as the noble and learned Baroness, Lady Hale, stressed, that the situation we were presented with was highly artificial in order to test one particular point: whether the “sole fact”, as it is put in the noble and learned Lord’s amendment, was enough to cross the threshold.

I do not want to add anything to the clear description which the noble and learned Lord, Lord Walker of Gestingthorpe, gave us as to what the case of In re J was all about, but I should like to say briefly why I join with the noble and learned Baroness in resisting the amendment. In my case, it is particularly on account of its wording, given the use of “sole fact” and the reference to “real possibility”. My objections can be summarised on three simple grounds: first, the amendment as it stands is wrong in principle; secondly, when you look at the structure of the statute it is unnecessary; and, thirdly, from the point of view of family life in circumstances that are quite likely to occur, it could indeed be damaging.

First, on the principle, I respectfully suggest that the golden rule is that a prediction of future harm has to be based on facts which have been proved on a balance of probabilities. It is only then that the state would be justified in removing a child from the family; in our democratic society, it is not enough that there should be suspicion. It has to be based on proof, so the state should be required to demonstrate that it has real and current concerns about the child’s safety before the child is taken into care. I appreciate that I am moving through all sorts of stages in making that proposition, but that is the background to the point I wish to make. I stress that if we look at the wording of Section 31(2) of the Children Act, which we do not have on the paper before us, when it states that a child may be taken into care only if,

“the child … is suffering, or is likely to suffer, significant harm”,

it is using the language of proof, not of possibility. That was a point made by Lord Nicholls some 18 years ago in the case of In re H.

As I think the noble and learned Lord, Lord Brown of Eaton-under-Heywood, accepted, the amendment has the effect of lowering the threshold to some degree. It assumes that the state cannot prove that the carer in question was the perpetrator—that all it can prove is that she was a possible perpetrator—and that that bald fact is all that can be done. Even allowing for the point at the end of the proposed amendment, that this is a “real possibility” and something that cannot sensibly be ignored, I suggest that we are still below the threshold which Section 31(2) sets.

Secondly, on necessity, it is important to appreciate that the noble and learned Baroness, Lady Hale, was not saying that the problem which the amendment is addressing is rare in itself. She was not saying, I think, that it is rare for two people in the situation in which the carer in this case was placed to blame each other, so that the court is unable to decide between the two. What she was saying was extremely rare was the situation which the court was being presented with: that this was the sole fact. As she put it in her judgment, the issue hardly ever comes before the court at the threshold stage packaged in that way. The point which she was making, and which one can see by studying the structure of the Children Act, is that in Part V, and in particular in Section 47, powers are available to the local authority to make inquiries and, if it is thwarted, to take further steps which may ultimately lead to an emergency protection order being applied for and so on, as the noble and learned Baroness, Lady Butler-Sloss, explained to us.

In the case of In re J, there was a difference of view as to whether the sole fact which has been referred to was relevant at all. In my judgment, I used the words “relevant” and “sufficient” to try to explain the difference of view. Lord Wilson and Lord Sumption said that it was not relevant at all; the rest of us said that the fact of the possible perpetration was relevant and could not be ignored, but it is not enough and is not sufficient to cross the threshold and therefore something more must be found.

The problem with the amendment is that it has absolutely no context attached to it. The sole possibilities are stated in the amendment in the starkest possible terms. However, as soon as you start to examine a particular case—as the noble and learned Lord, Lord Judge, did when he talked about the number of injuries inflicted in that tragic period of three weeks—you are adding something that is not in the amendment. Indeed, the noble and learned Lord, Lord Lloyd, said that the amendment is dealing with the situation of two possible perpetrators only, but it does not actually say that. It just says “a possible perpetrator”. As soon as you begin to make inquiries and search around, you are going to add things in which begin to build up a context which the social worker will be able to put together before the threshold stage has to be crossed when the case is brought into court. My objection to the amendment is really that: that it does not give you any context at all. Surely, that is taking the matter too far.

The third and final point is the risk of damage. Let us contemplate a situation which is not far removed from the situation of In re J, where the woman—and let us take the woman because it was the woman in In re J—is living in an abusive relationship. That was indeed the case here because she had separated from the previous partner because he was violent to her repeatedly and eventually she left him. All sorts of reasons can be imagined why she did not blame him. She may have been under pressure from him. She decides to create a new life for herself, as indeed she was doing in In re J, making a relationship with somebody who is absolutely blameless, who has children of his own already. There she is, now in family with him with a further child of their own.

My concern is that, if the amendment is passed in its stark form, it holds a threat over that relationship from the very beginning. There must be a question about, “Is it wise for me to enter into this relationship? Am I always going to be at risk of being before the court for a full threshold inquiry, simply because of what happened in the past?” The amendment pays no regard to the length of time that may have elapsed between the incident when the perpetration occurred and the moment at which the inquiry is being initiated. Without elaborating further, it is the starkness of the amendment, which lowers the threshold, that is a cause for real concern.

I wrote to the noble and learned Lord, Lord Lloyd, with a suggestion about how one might approach the problem—because I do appreciate that there is a problem—by suggesting that, without using the word “sole”, one might be able to reassure social workers that this factor is relevant, which I believe firmly would be the case. If an amendment were to be framed which made that point and put it beyond doubt, then I would be entirely happy and I hope very much that it would reassure social workers. However, the amendment as phrased goes far too far and is too stark and for that reason I support the noble and learned Baroness, Lady Butler-Sloss, in resisting the amendment.