Schools Bill [HL]

Baroness Berridge Excerpts

2nd reading & Lords Hansard - Part one
Monday 23rd May 2022 Lords Chamber

[Baroness Berridge (Con)]

My Lords, with children sitting GCSEs, BTECs, A-levels and other qualifications, it is rather apt that today this Bill is having its Second Reading. Many noble Lords will, like me, be waiting with bated breath for the full performance and attainment gap data that will, sadly, perhaps confirm that Covid has disproportionately affected our most disadvantaged students. I welcome the Bill for the changes it makes for those students, but I am concerned about some missed opportunities.

Perhaps 20 years ago there was an ideal world of home education, done solely by parents who truly believed in it and did it very well. If those halcyon days ever existed, they are over, and I thank the noble Lord, Lord Storey, for his persistence and foresight in this matter. It is important to recognise, however, that there are parents who educate at home who have not chosen to do so for ideological reasons but because failures in provision for special educational needs children made them feel forced to remove their children from school and educate them at home.

The current situation was drawn to my attention by concerned head teachers. If a child in year 9 or year 10 is falling behind, any good school will engage persistently with parents, and sadly a tiny minority view that as a hassle. Some have cottoned on to the idea that if you tell the school you are home educating, the hassle from the school goes away. That is the story of some of the young people in our towns and cities today, and the local authority needs to know their details at the very least. They are vulnerable to criminal and sexual exploitation as well as to not getting an education. There is the risk that some parents may choose to keep their children away from other influences and expose them to truly extremist views. Then there are those who home education allows to harm their child physically and emotionally. Home education, or not being on a school roll, has been a factor in a number of the most serious cases of harm to children and in harm done by children who end up in the criminal court system. Although the Bill puts a duty on parents who are doing a good job, for the common good it is time to legislate.

Part 1 may seem technical, but it is essential to delivering better education for our most disadvantaged and SEND children and sorting out some of the messy world of trusts. It deals with the amber lights; I will come to the red lights later. The changes since 2010 mean that the Secretary of State has direct responsibility for the quality of education in our schools. I believe it has enhanced the role of the MP as it is the MP’s job to hold central government, not local government, to account. In theory they are better qualified to come to the Secretary of State who purchases the services and should sort of them out. The Secretary of State may, inter alia, already see an amber light in relation to an academy’s finances or may be aware that a trust has got hold of some Section 106 money and is embarking on an extensive building project with scant construction resources on the trustee body. Currently the Secretary of State may be powerless to intervene, but if you can catch problems, whether with finances, building or governance, you can sometimes get into a school or trust before the education of the children suffers.

All this intervention is about preventing failure and making good use of public funds, and most academy trusts do a very good job. But rather like the great parents who home educate, the Secretary of State must have power to sort out the trusts which are in breach of standards or agreements. I have numerous questions in relation to the clauses and I hope we are not going to end up with a blend, with some matters dealt with in standards and some left in the agreements, which seems to be a possibility under the Bill. But I look forward to discussing those matters in Committee and hopefully in meetings beforehand.

If the red light of an “inadequate” Ofsted judgment can be avoided by these interventions, so much harm will be prevented. Once there is an “inadequate” judgment, the school’s contract can of course be terminated, but inadequate schools tend to have disproportionate numbers of SEND and free school meal children in them, so intervening early is essential to prevent this. Despite the best help from the House of Lords Library, the DfE, which produces the data, does not seem to produce free school meal and SEND figures separately for inadequate or RI schools. The Children’s Commissioner did her best in her Ambition for All report, saying:

“If you are a child receiving free school meals, you are 1.4 times more likely to be going to a school that is less than good.”


In short, children who are most in need of a good school are the least likely to be going to one. I do not often speak of Members in the other place—and particularly the right honourable Angela Rayner MP—but she did ask a question about this before the pandemic. It was maybe in a bit too much detail to give the department its dues, but I hope my noble friend the Minister will rectify this, as it is essential that MPs and Peers are able to look at the cohort of children in our failed or failing schools.

I am grateful that this Bill sits alongside the consultation on RI schools, as repeat “requiring improvement” judgments should be a red light and be able to end the role of the trust or the local authority with the schools. This has to stop, and two RI judgements should be that red light.

My final red light issue, which I will raise in Committee by way of an amendment, is, as many noble Lords have talked about, the state of school buildings. There is a school rebuilding programme, but there remains significant concern about certain building materials used in hospitals, schools and other public buildings. It is the expertise of your Lordships’ House to think through the unexpected consequences and ensure that the Secretary of State has the requisite legal powers should there be an issue with building materials affecting numerous schools which becomes relevant. Letters of comfort may not be enough if the responsible body’s lawyers advise them that they can be exposed to liability governed by the Health and Safety Executive.

I am disappointed that none of the barriers that cause local authority-maintained schools to get stuck and not transfer into the academy system are not addressed in this Bill. Nor are the changes to trust law that can help certain transfers. I am disappointed that the parents of children at a grammar school, rather than a wider electorate, can ensure that the school remains selective. As of January 2021, only 4.9% of children in our grammar schools had free school meals; this really cannot be helping social mobility. I would be grateful if my noble friend the Minister—as the noble Baroness, Lady Chapman, outlined—could consider whether there are matters to do with the admissions code, which the Government used persuasively for looked-after children, that can be looked at in this regard.

I applaud the vision of the Bill, but it has to lead to a nimble and quick solution for academy trusts that are failing. While this legislation will give the Secretary of State the ability to intervene, it has to be used urgently and should be like a 999-urgent situation when a school is failing.

Schools Bill [HL]

Baroness Berridge Excerpts

Committee stage
Wednesday 8th June 2022 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I am struggling to think of the collective noun for former Cabinet Ministers that are going to address the Committee—probably a “clutter” of them, behind my noble friend.

I shall speak briefly. I pay tribute—and noble Lords can imagine what I stepped into in the department following my noble friend Lord Agnew. We were left with a hard rump of cases. One thing that I do not think has been mentioned so far—and I approach this mainly as a lawyer—is the nature of the vehicle that is the multi-academy trust. It is a charitable company, but of course there were so many of them that the regulation from the Charity Commission in 2014 was passed to the Department for Education to make the Secretary of State the chief regulator.

In terms of the hard rump that is left and the issues that we need to deal with, it is because of the nature of the legal vehicle that there is a very high bar for intervening, as the Charity Commission sometimes does, in a company or charitable company, when one of the issues that you may need to sort out is that the governance has gone wrong. I hope that my noble friend the Minister can answer that point. Is there something here that we have not discussed—it might be the nature of the legal vehicle that we are using—that has actually led to some of these issues and leaves you with a hard rump that you cannot get at? The Academy Trust Handbook was renamed because it covers not just money—it covers essentially governance and safeguarding, and health and safety was also put into it, so it was clear to the sector that these were the rules and framework that it needed to work to.

The second point that I want to reiterate—it was made by my noble friend Lord Nash—is that it is a very important move to move fundamentally from a bilateral arrangement, where both parties have to consent, to any type of unilateral arrangement. I know that the issues have been well addressed by other noble Lords about the nature of those powers. When you have that consenting arrangement of the contract between two parties, it is also talking to the value of the service that the other contracting party is delivering. Overwhelmingly, these single academy trusts and MATs are doing a great job; they are abiding by the contract. However, with that hard rump, you need to intervene. As I often used to say in the department, why do I seem to have more power if the computer I bought from John Lewis goes wrong than I do if the education of children is being failed by them not delivering in accordance with the contract?

My final point—and I have not had the privilege of meeting my noble friend yet about the Bill—is, faced with this situation, if the Government are considering pausing, what is the view of the MATs sector? It is now sitting there with the prospect of this legislation and a unilateral situation. There are MATs on very old contracts that need changing. What would they choose, if they were given that choice—progressing with this legislation or agreeing to a new form of contract? Most of these issues to do with articles of association and new forms of contract have been dealt with, due to the noble Lords who preceded me. Is there now an issue that now needs addressing? If those MATs will agree to new contracts and go on to new terms and conditions, is that not also a way that my noble friend the Minister can look at, now that the sector is seeing what an alternative would be for them, if they insist on not having proper separation in their governance or not having the new agreement? That may be a pragmatic consultation that we could have with the sector at this stage of the Bill.

[Baroness Wilcox of Newport (Lab)]

We have had an excellent debate from so many noble Lords. I shall try to be concise, because so much has already been said. This group of amendments again seeks to put safeguards around the power that the Secretary of State has to make on standards for academies, and seeks information from the Government about what lies behind this taking of broad powers. Colleagues have spoken to the damning Delegated Powers and Regulatory Reform Committee report, which takes such issue with powers in this Bill. I shall not tread over old ground, but I wanted to note what other noble Lords have said, such as the comments of the noble Baroness, Lady Meacher on the Henry VIII powers. “We don’t want Parliament involved”—what a blow to democracy that is. My noble friend Lord Hunt spoke eloquently on the unacceptability of these matters in relation to the report, and the noble Baroness, Lady Meacher, reminded us that this report was personally forwarded to the Secretary of State.

The noble Lord, Lord Baker, took us back to the 1870s, and how the department has never done these things before, and the glaring omission in the proposals of the social context of a school. My noble friend Lady Blower reiterated the nature of the power grab, and reminded us that a national service, locally delivered, was the aspiration at the beginning of our teaching careers, but the local dimension is no more. It speaks to a worrying trend across government, denying Parliament the opportunity to deal with matters in the Bill in favour of shoving something through via statutory instrument later down the line, once they have worked out what they want to do. It is not even the cart before the horse—it is the cart before the cart.

I ask the Minister with sincerity, in trying to understand the rationale behind this power grab, what is the reason for this approach? Has the detail of the specific measures the Secretary of State would like to take not been fleshed out? Perhaps it has been. If so, is it controversial, at an increasingly controversial time for the governing party? Is it meant to give some wriggle room in response to political or media pressure to act in an unforeseen area, so it buys the ubiquitous “get out of jail” card, if the public reaction—like so much public reaction to the Government these days—is hostile?

I struggle to understand why Parliament and parliamentary scrutiny will not be given the chance to debate the rights and wrongs of what the DfE intends to do. I understand that the White Paper is meant to give colour to some of these questions, but its offering is limited on many of the concrete measures that the Secretary of State may or may not be looking to impose. It hardly needs me to remind the House that this Government will not be in power for ever, as has been noted by the noble Lord, Lord Addington—and some may say the sooner the better, in the light of the current state of our countries. But these powers will be there for others to wield in future, or indeed repeal, if the Government are determined to push this through despite the strong voices that we have heard today to the contrary.

Schools Bill [HL]

Baroness Berridge Excerpts

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

[Baroness Berridge (Con)]

My Lords, I want to raise a point probably connected to the comments of my noble friend Lord Baker, which may help my noble friend the Minister. I raised on the first day in Committee the consideration of the legal vehicle that we are dealing with here, which is potentially affected when you move from the bilateral to the unilateral, and any implications for not just charitable status but the role of charity trustees, as well as that of company directors, as in most cases these are charitable companies. I know that my noble friend intends to write to me, but it may be that the comments that follow from that have a connected purpose to what my noble friend Lord Baker has said in relation to any effects on the charitable purpose as well as the vehicle. We are dealing with a legal entity, and the implications for that need to be fully considered in the change from a bilateral contract to the unilateral situation that my noble friend proposes.

[Lord Nash (Con)]

My Lords, I declare my interests as a chair of an academy trust and as a trustee of the Education Policy Institute.

I shall give a little background on trustees and their role and recruitment. When I became an academies Minister in 2013, it was clear that the very good initiative started by the noble Lord, Lord Adonis—who I see is not in his place—to find academy sponsors, such as myself and my noble friends Lord Agnew and Lord Baker, had been put very much on the back burner by officials in the rush to academise; it took a very long time to warm these people up and it was a long process. I said I did not care how long it took to warm these people up; we must have this process. I did not care if we got chucked out of government and the Labour Party came back in and used all the people that we had found—good luck; it is a very noble purpose.

As it happened, we did not find too many nutters like myself and my noble friend Lord Agnew who were prepared to go from a standing start to being full academy sponsors in one move, but we found hundreds, if not now thousands, of people who were prepared to go on the boards of multi-academy trusts as non-executive directors, pro bono, to serve a very good public purpose. I wonder how many we would have found if they knew they could be chucked out by the DfE at its whim.

--- Later in debate ---

[Baroness Morris of Yardley (Lab)]

My Lords, I support the thrust of the arguments from the noble Lords who have led this debate. I shall make one or two points that perhaps have not yet come out strongly. The freedom to set their own admissions arrangements was given to academies when they first started. To be honest, I think that was a huge mistake. In local areas, it caused terrible animosity between the academies and the other maintained schools. That is part of the rift and the bad feeling that exist in many communities. I do not know many schools that, in setting their own admissions criteria, have sought to prioritise the poorest and most challenging children, those who have been excluded from more schools than anyone else, those without supportive parents and those without a room to work in at home—that is not how choosing your own admissions criteria actually works.

This is not the schools’ fault but, in terms of judging schools by how well they do academically, our whole system incentivises schools to have admissions criteria that get those children who are most likely to do well academically. If we were to change the accountability mechanisms so that we had as our most important accountability measure how much you can do for the poorest 5% of children in your city, we would have a different system, but that is not the way it runs.

However, I also blame schools. I was a teacher for 18 years. At the heart of it, I have always believed that the job of a professional teacher is to teach the children who end up in front of you on any given day—not to pick and choose; not to reject and throw away; not to say, “It’s easier to teach you than you”, but to do your best with the skills you have with the children in front of you. I taught in a school that was very challenging, and as a teacher the greatest rewards come from the progress you make with the children who are furthest behind when you start—but that is not the way the system works. There have been too many examples of academies that have used their ability to have their own admissions arrangements to select the children, or the parents, that will put them highest in the accountability stakes.

If you are a school that is undersubscribed, this argument does not matter to you. If you cannot get enough kids through the door for your published admissions number, then none of this matters. It matters only if you are a school that is oversubscribed, because only when it gets to oversubscription do the criteria for admissions come into effect. So think that through: if you are a school that is undersubscribed and not attracting children, so not getting the money, you have to take whoever no one else wants. Therefore, you do not improve, you do not get as many children, you do not get the money and again, you do not improve. That is the cycle that happens: undersubscribed schools do not attract children and therefore find it very difficult to improve.

Looking back, when the academies started under the Labour Government they were addressing the needs of those schools in the most challenging areas. In truth, what happened was that if you gave them a new building, a new head and a committed sponsor, they still did not have a cross-section of students coming through their doors. The idea at that stage, in giving them some power over admissions arrangements, was to try to get a better social mix. I can sort of see that, but it has gone way out of kilter with how it should be. In 2010, the minute the vision was that every school should become an academy, that just did not make sense.

I say to my noble friend Lord Hunt that where schools differ from hospitals is that who you treat in one hospital does not usually have an impact on the neighbouring hospital or another in the outer ring of the city. But schools are interrelated: who you choose to admit has an effect on every other school in your locality as it is an interrelated business, so it is very important that we do not have schools competing with each other in any geographical area for the bright kids. It has to work across such an area, for two reasons.

First, successful schools will always manage to attract children who, quite frankly, are easier to get the high results with—I would not say they are easier to teach. That has an effect on other schools and creates that bad feeling, so it is interrelated. The way you choose to admit pupils has an effect on other schools in your locality. I do not mind what they do, whether they band or have feeder schools, or measure it in yards from the school. What I do mind is that all schools in a local authority area ought to do the same. If you want a social mix, you can band right across the local authority area. I am not sure I like that but I do not have a problem with it because the behaviour of one school will not badly affect the performance of another.

In Birmingham, however, the minute you let over 400 schools set their own admissions arrangements there was chaos. It meant that they do not match each other. Some people of a faith with a child of a certain ability live in a place where they cannot get them into their local school because they do not live close enough, or into a faith school because they are not of the right faith. Neither does their child have the right ability to get selected in the banding arrangements, so where do they go? They go to the school that still has places left. That is not choice, but it happens in areas where there are a lot of schools that are allowed to have separate admission arrangements.

In supporting very much the amendments put forward, my plea is that it has to make sense across a geographical area. That means you cannot allow schools within the same area to have different admissions arrangements from other schools within it. I think the local authority should manage that, and that there is nothing wrong in all the schools getting together with a local authority, the parents and the primary schools to decide what those criteria should be within a national framework set down by government. But at some point they have to come to an agreement, because education is about a social as well as an academic experience. Your social experience is, in part, the children who are around you in your school—and that matters.

To be honest, that is why parents go to so much effort to exercise choice over where they want their child to go. It is not just for the academic experience but for the social experience—again, it is different with a hospital. That social experience will be right for all children, or as good as we can make it for them, only if we have some camaraderie within a geographical area so that people sit down with the same admissions arrangements. Having done that, teachers should do what they do: get on with teaching the children in front of them, not spending time on trying to get a different bunch of children in their classrooms because they think it gives them a better chance of success.

[Baroness Berridge (Con)]

My Lords, I have a quick comment. I am grateful to the noble Lord, Lord Hunt, for his history lesson. During the period he mentioned, Rutland had the unfortunate experience of being part of Leicestershire. Had grammar schools still existed then, I can only look back and wonder what my own education—with no money for tutoring—would have been if the local school in the market town had been left as a secondary modern.

I have a specific question on the point made by the noble Lord, Lord Shipley, about the backstop power, which I was surprised to see included in, I think, the White Paper. What is the timing of that? At the moment, we know that some boroughs are under extraordinary pressure. When we nationally decide, for instance, to admit tens of thousands of families from Hong Kong—which is a great policy—we create extraordinary influxes of children into particular areas. I was just reading a Manchester Evening News article about the pressures Trafford Council is under at the moment, having had an extraordinary influx of Hong Kong Chinese families into the area. This has unusual ripples in Trafford, where there are grammar schools within the borough.

What would the timing of this be? At the moment, we have local authorities which cannot have any effect on admissions, particularly in those secondary schools that are academies. There is a proposal for a backstop power. This was also before we admitted tens of thousands of Ukrainian families into this country. If in the consultation it is decided not to have the backstop power—I recognise the view from those in the academies sector on local authorities’ admission policies—is there not a case for some emergency power in a situation when tens of thousands of families come into an area? You need different admissions arrangements because you have to think about the cohesion of the area locally. If you have an influx of families, families who have lived in an area for many years find that they cannot get their children into the schools they want. There are also the unpredictable ripples of selection in an area. Can my noble friend the Minister outline the timing of this, because there are boroughs under pressure today?

[Lord Addington (LD)]

My Lords, can the Minister clarify how special educational needs fits into this picture? I know the Government are currently looking at this area, but it is one that has led to the growth of legal firms to fight a way through the system. It is a failing system. I remind the Committee of my interests in special educational needs, and dyslexia in particular. With dyslexics, for instance, we are discovering that something like 80% of those on that spectrum are not identified within the school system. There is capacity here for a group that exists but we know is not even being spotted. Should we not have some capacity for dealing with the people with these sorts of problems, because we know they are going to come across? This also applies to all the spectrum of non-obvious conditions and hidden difficulties.

If the Minister cannot reply now, when we are looking at this, could she write to us about what the Government’s thinking on this sector is at the moment? It is yet another element when it comes to choosing a school or a school’s willingness to take on a pupil. We know there are people fighting this. As I said, if ever there was a definition of failure, it is that you need lawyers to get your rights. That has to be the classic case. Can the Minister give us an idea of the Government’s thinking about admissions? If you cannot get into a school because it has set criteria, regardless of any formal test or examination, it will change how things work. It will be very interesting to hear what the Minister says about government thinking on this, because it is another factor that will affect this whole process.

Schools Bill [HL]

Baroness Berridge Excerpts

Committee stage
Monday 27th June 2022 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I rise to speak to Amendment 171 in my name. I am grateful to my noble friend the Minister and her officials for taking the time to meet with me.

Although I immediately concede that there may be drafting issues—in particular, the scenario that I am going to outline may not be dealt with as swiftly as it would need to be by the use of regulations—the amendment is a vehicle to explore with Her Majesty’s Government the legal powers that the Secretary of State has, or does not have, if there should be a failure of a building material within the school estate.

The estate comprises nearly 64,000 teaching blocks and its condition, as noble Lords have mentioned, is an issue that is beginning to be discussed more publicly. Many noble Lords spoke to the issue at Second Reading. While I know that my noble friend will not be able to comment on the recent alleged government leak to the media that some issues in the school estate pose a “threat to life”, there are a number of specific issues in the public domain. For example, reinforced autoclaved aerated concrete is found in hospitals in Norfolk and Suffolk; the BBC reported on it on 16 August 2021 and, when I checked, it had made the news again on 27 April 2022. It is a material also found in schools. In the news report from 2021, the NHS foundation trust was taking legal advice on potential liability for corporate manslaughter.

The question that I am asking Her Majesty’s Government to consider is whether the Secretary of State needs a legal power to be able to bring certain school buildings into their ownership or control—usually that would be by way of a power to direct—if there were a failure in such a building material. To try to avoid the risk of this sounding like a law examination paper, there are, I think, four brief steps to consider to get to the scenario where the Secretary of State might need such a power of direction. First, school buildings and virtually all land are not owned by the Secretary of State. Land and buildings are leased to the academy trust—in that scenario, from the landowner, usually the local authority, a diocesan trust, other charitable trusts, occasionally a university or FE college or, in a very small number of cases, from the DfE when it is a free school. The academy trust is, in law, the “responsible body” in charge of the land and buildings. For maintained schools, the responsible body is the local authority and, for maintained church schools, it is the relevant diocesan authority. Responsible bodies are legally responsible for the building.

Secondly, obviously, if there is a building material failure, it could be present in other school buildings. In such a situation, responsible bodies—here I must put on record the excellent capital team of the Department for Education—would of course spring into action. They would be inspecting, sending out surveyors and providing reassurance on the safety of buildings.

However, to move to step 3, if a responsible body says “No, we disagree with the Department for Education and the assessment of our buildings; we are closing them”, the DfE may maintain until the cows come home that the buildings are safe, but it is not the decision-maker.

Fourthly, noble Lords might say to me, “All these responsible bodies and schools are insured.” That is correct, but insurance or the DfE risk assurance protection are irrelevant to the liability that a responsible body, and possibly its trustees, might believe they face under the Health and Safety Executive powers or any criminal liability. The department of course faced similar issues to this when dealing with health and safety during Covid but, under the Coronavirus Act, the Secretary of State did have a power to direct a school to open or close. The political realities of using that power were another matter of course. That power to direct has gone.

I accept that the risk of this occurring is very low but, if it does materialise, there could again be disruption to the education of hundreds, if not thousands, of pupils. I believe this is a legal question that parents and schools should know has been considered in your Lordships’ House if, God forbid, this eventuality ever arises—even if the DfE says to noble Lords, “No, we do not want such a power to direct the ownership or control of school buildings to the department.”

When one of noble Lords’ main criticisms of this Bill is the scope of the powers that the Secretary of State is taking in Part 1, it would be ironic if, by way of this amendment, I have discovered the only power that the Secretary of State does not think he wants. While I appreciate that my noble friend the Minister might not have an answer today, I reserve the right to bring back this important issue on Report.

[Lord Addington (LD)]

My Lords, I apologise to the noble Lords, Lord Aberdare and Lord Moynihan, and to the noble Baroness, Lady Grey-Thompson, for having on two occasions said that I must sign an amendment and then failing to do it. I must also declare an interest here; although young people may fall down occasionally, it is usually older, occasional sportsmen who do so, and I am certainly in that category.

As was mentioned before, many sporting facilities are on school grounds. If we want people playing sport, and playing it as safely as possible, we should really make sure that, at the very least, school sports grounds—which have more structure and over which we have more control—have access to defib. It is a pretty common practice now. Most people say that, if you follow the instructions, you will be able to use it correctly, although extra training cannot hurt. Indeed, it sounds like the noble Lord, Lord Aberdare, is a man to be beside when you are under any stress at all if he has the thing with him. If we can put something in the Bill that says we will have better coverage of defib capacity and some training on how to use it, or at least make it more common, that will be a definite step forward.

I live in a village designed for horseracing, and on the high street there is a nice big yellow defibrillator, because if people fall off horses and get injured, defib might be required. This is something we can do easily and in a straightforward manner that will make people’s lives that little bit safer. I recommend that we embrace this and go forward with it, if not in this exact form then, I hope, something very like it.

I will briefly cast my eye over the other two amendments in this group. On the amendment of the noble Baroness, Lady Chapman, I like the idea in proposed new paragraph (b) of having a list, including sports fields, to make sure that we know how they are doing. I have a Private Member’s Bill that puts a little more emphasis on this, so possibly I am biased.

I do not have to tell the noble Baroness who will be responding for the Government just how important is the capacity of computers to help many people in their educational process, and making sure they are up to date. These are two good examples of why the idea within the amendment should probably be brought further forward. It would be a good thing.

As for the noble Baroness, Lady Berridge, I had not really considered what she has brought forward but it does sound sensible. I look forward to hearing the answer. It occurs to me that there is a certain degree of irony here; we often argue against overregulation, but this sounds like one they have missed that might be very useful.

--- Later in debate ---

Our view is that the current arrangements allow the department to take action proportionate to the level of risk and support schools with advice and funding when needed, but without abrogating the responsibilities and legal duties of the sector. We do not think that additional powers to compel schools to open when they have safety concerns are required at this time. The department taking on direct responsibility for school buildings, or compelling schools to open when they have safety concerns, could actually reduce safety overall as it could undermine the incentive to maintain buildings effectively and obscure the currently clear responsibilities for the safety of pupils and staff in our schools.

[Baroness Berridge (Con)]

The amendment is not saying that we should compel schools, for that reason. My noble friend may need to come back to this, but what happens in a scenario where there is no agreement between the department and the responsible body about what should happen to a building? That is the key issue in the amendment: transferring the responsibility to the department. Although I appreciate the detailed case-by-case examples, it is a very different scenario if you have a building material fail across thousands of schools and risk going across the system. Can my noble friend say what happens if there is disagreement in that kind of scenario?

[Baroness Barran (Con)]

It might be most helpful to the Committee if I come back to my noble friend. She is right to insist to have this point discussed on public record but it would be more useful to take a real example that we can quantify in some way.

On Amendment 167 in the names of my noble friend Lord Moynihan, the noble Lord, Lord Aberdare, and the noble Baroness, Lady Grey-Thompson, we absolutely recognise the importance of defibrillators. That is why our guidance for building new schools has included the provision of defibrillators since 2019. As noble Lords referred to, we have also worked with NHS England to establish a framework for schools to purchase defibrillators at a reduced rate. I thank the noble Lord, Lord Aberdare, for his update on the latest in defibrillator technology, and I would of course be delighted to meet with the noble Baroness, Lady Grey-Thompson, and colleagues.

I was touched by the reference of the noble Lord, Lord Storey, to the tragic death of Oliver King; a friend of my children died in a school local to us, so I am all too aware of the tragedy involved in such cases. I am pleased that the Secretary of State has committed to working with the Oliver King Foundation to ensure that all schools have access to defibrillators. We are currently working on options to deliver these life-saving devices, and I look forward to being able to update noble Lords on that before too long.

I am told, for your Lordships’ benefit, that there is a defibrillator in Black Rod’s box, so we are all now informed.

I therefore ask the noble Baroness, Lady Chapman, to withdraw her Amendment 156 and ask other noble Lords not to move the amendments in their names.

Schools Bill [HL]

Baroness Berridge Excerpts

Report stage & Lords Hansard - Part 2
Monday 18th July 2022 Lords Chamber

[Lord Addington (LD)]

My Lords, it is now my job to hang on to the coattails of the people who did the real work on this and say thank you to the Minister. I do not know whether the fact that this amendment to the Bill is not to be accepted says something about confidence in the future of the Bill or the timescale involved. I hope the Minister will be able to tell us roughly the timescale on which this part of the coverage will be brought in.

Schools are an important factor; they predominantly deal with most of the sporting activity of the very young. However, while the correct terminology totally escapes me—the noble Lord, Lord Moynihan, had it earlier—other heart problems will occur in middle-aged men running around trying to lose a few pounds; a group which I am probably waving goodbye to even now. We are setting down that other people will have heart conditions, which is helpful.

Getting this into other sports facilities is a fairly cheap, easy way of avoiding early death. If the Government could give us some idea of the plan for the future, after this provision—I am basically asking about the timescale, implementation and future development—that would be very helpful.

I say thank you to the Minister for this one, and to the Government, but hope it is just part of ensuring that we have universal coverage for those places where sport is usually played. It is a good start but is not the end of this story.

[Baroness Berridge (Con)]

My Lords, I shall speak to Amendment 109 in my name. I look forward to hearing my noble friend’s response to the amendment in the name of the noble Lord, Lord Moynihan. I am grateful to the Public Bill Office for its assistance in redrafting this amendment and for a meeting with the Minister and her officials. This is very much a last-resort power.

The amendment is not about compelling schools to open when there is a dispute about their safety, which is a welcome clarification since Committee. I will not rehearse the details of the scenario I outlined in Committee but I do not believe that noble Lords have had a clear answer from my noble friend the Minister as to how, in the scenario of a serious failure in the school estate, where the Department for Education says that a school building is safe but the responsible body says it has an expert report to say that it is not, that stalemate is resolved. In those circumstances, the building would be closed as the responsible body makes the decision.

In addition to this scenario, it could be that although the expert report tells the responsible body that a school building is safe, it is extremely risk averse and refuses to open it. My noble friend the Minister said in Committee:

“However, we expect schools, trusts and local authorities to make decisions proportionate to the level of risk, and to minimise disruption”.—[Official Report, 27/6/22; col. 503.]


I think this is the nub of the issue. Some responsible bodies might not, in the Department for Education’s view, be acting proportionately because they have come to a different decision about the level of risk of opening that building. Some responsible bodies are very small charitable trusts or may even, unfortunately, be a local authority in great difficulty, and those responsible might rightly fear becoming personally liable under health and safety law for anything that then occurs in the building.

Such fear may be irrational, in the judicial review definition of that word. I have mused that without such a power to direct a responsible body to open, the Government are leaving themselves with only that remedy: they themselves would have to judicially review a responsible body and say that its decision was irrational or unreasonable in order to force that school to reopen. Would it really be irrational, in the ordinary view of that term, if there had been serious injuries caused by building materials in another part of the estate, for a responsible body to err on the side of caution—perhaps due to an ambiguous phrase in its own expert’s report—causing it to make such a decision?

The amendment has highlighted that the Department for Education understandably assumes that responsible bodies will behave in this scenario as they have done in the past, with the current level of risk that we know about on the school estate. In the scenario, the department’s excellent capital team comes alongside to give its additional expertise and a negotiated solution is reached—sometimes, sadly, including the temporary closure of buildings. However, if a serious incident has taken place, could it not be that some of the approximately 2,500 responsible bodies might justifiably now behave differently? What looks irrational now might not have then.

I am grateful to my noble friend the Minister for agreeing to reach out to the, for me, newly-discovered disaster relief experts whose profession has gained a higher profile since the pandemic, and since Professor Lucy Easthope’s recent book When the Dust Settles was published. There may be other experts who can aid the department in assessing more accurately how responsible bodies might behave in this scenario.

One has only to look at the Grenfell tragedy to know that building managers and a whole host of other professionals are behaving very differently now. I am sure the department will be watching carefully the Health and Safety Executive inspections that are beginning, looking at schools’ ability to manage the asbestos within the school estate. If those inspections lead to any of the scenarios that I have outlined, the Secretary of State is powerless to act.

Further, my noble friend the Minister stated in Committee:

“The department taking on direct responsibility for school buildings, or compelling schools to open when they have safety concerns”—


the latter point has been dealt with—

“could actually reduce safety overall as it could undermine the incentive to maintain buildings effectively and obscure the currently clear responsibilities for the safety of pupils and staff in our schools.”—[Official Report, 27/6/22; col. 504.]

Again, that is quite an assumption by the Department for Education about responsible bodies’ behaviour. I am not sure on what evidence it is based, especially since what is in the amendment is a last-resort power. I hope the experts that the DfE meets are able to help my noble friend assess whether this assumption of how responsible bodies would behave is correct, as I am afraid it strikes me as rather unfair on responsible bodies to make such an assumption.

I understand that the Minister will be taking steps to ensure that responsible bodies are rigorous in undertaking checks and more detailed surveys as necessary where they have buildings in which the specific material reinforced autoclaved aerated concrete, which we spoke about in Committee, could potentially be present. I am keen to hear more on that.

As I stated in Committee, in a Bill that attempts to take so many powers, I have managed to achieve that the Secretary of State has decided that they do not need this one. I sincerely hope, as I am sure other noble Lords do, that the scenario I have outlined never arises. I will not be asking for the opinion of your Lordships’ House today; this is a case of wait and see. I am sure noble Lords are with me in saying that we hope it is not a case of saying, “We told you so”.

[Baroness Chapman of Darlington (Lab)]

Our Amendment 118F would require the Government to publish a report detailing the condition of school buildings by category of fault, whether it is boilers and pipe work, electrical services, lighting or IT. We would like to know their assessment of risk to children and staff, the geographical breakdown and the cost. We have not been able to glean all the information that we have been looking for from the Condition of School Buildings Survey from May 2021, and we think the problem is getting worse following years of neglect. We know that the total condition need is estimated to be £11.4 billion.

We have been alarmed, as have many others, at being made aware of leaked emails at the department describing school buildings as posing a “risk to life”. Schools have been fined for failing to tackle issues from disturbed asbestos to heavy lockers not attached to walls falling on to children. We have not been able to find a record of the number of school days lost due to building failure, whether that is snow days or, as we are seeing today, closures due to excessive heat.

Bad school buildings risk lost education and physical harm to children. Will the condition data collection 2 programme enable local MPs, for example, or councillors and parents to know the condition of school buildings in their area, the estimated costs and the assessment of risk? Will the number of days of education lost due to problems with buildings be published?

This is an important amendment to try to get some additional information. We may not divide the House tonight, but it will be returned to as the Bill progresses. It really should not take an amendment to do this; perhaps one of the noble Lords opposite could ask the candidates for Prime Minister where they stand on this issue, because I predict it will become of greater and greater political interest in the coming months.

I also place on record our thanks to the noble Lord, Lord Moynihan, the noble Baroness, Lady Grey-Thompson, and others, especially the Oliver King Foundation, for their incredible work on defibrillators over many years. Let us hope the Minister can confirm what we think we know. This is such an important step and we all hope it will save lives.