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.