Schools Bill [HL]

Baroness Garden of Frognal Excerpts

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

These amendments relate to Clause 41, which gives the Secretary of State the ability to make arrangements for in-year adjustments to schools’ funding allocations where pupils are permanently excluded, and will ensure that funding can follow excluded pupils where they move between schools in different local authorities. This amendment will ensure that these arrangements can operate properly in relation to academies under the new funding system that we are establishing in the Bill. I beg to move.

[Baroness Garden of Frognal (LD)]

My Lords, I rise to introduce Amendments 76A and 76B, tabled by my noble friend Lord German, who is currently on a working visit to the Gambia and so is unable to be here. These amend government Amendment 76, which the Minister has already referred to.

We on these Benches support the proposal to create secure schools and academies. Youth custody, by its very nature, means that those within them are the most vulnerable and challenging young people. I once taught in a secure school and was struck by the care and hard work of all the teachers, committed to improving the life chances of some very damaged and occasionally violent young people. It was quite a scary commitment. That is why Charlie Taylor, in his review, proposed secure schools as a major way of dealing with the problems of the youth custody system.

However, we are concerned that local authorities have been ruled out of the objective of finding the best provision possible for these most challenging and vulnerable young people. There is a legal route open to local authorities to make a bid for running a secure academy, but such a bid would run counter to the Government’s policy. Yes, you can legally apply to run a secure school, but it is not government policy to accept your bid.

In his 2016 review, Charlie Taylor made two very clear points which are of relevance to this piece of legislation. The first was:

“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”


The second was:

“Rather than seeking to import education into youth prisons, schools must be created for detained children which bring together other essential services, and in which are then overlaid the necessary security arrangements.”


The Taylor report pointed out the absolute importance of integration, not only of education but of a wide variety of services within the work of these schools. Health, social care, and services providing reintegration following custody are required within the school and not external to it. These are services that local authorities currently provide. Following the logic of local authority statutory provisions, particularly those on the duty to safeguard and promote the welfare of their children and the need for a new form of integration, there is much that local authorities can offer.

The then Minister, the noble Lord, Lord Wolfson, said in January:

“I accept that the Government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision … local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here.”—[Official Report, 10/1/22; cols. 825-26.]


It is against this strange backdrop of legal rights and government policy going in different directions that I look at government Amendment 76. It states that

“where the educational institution … is to be a 16-19 Academy”

and not that all secure schools are to be academies. Can the Minister confirm that the legal position on local authority involvement in secure schools has not altered since the Government’s statement to this House in January?

Engagement with local authorities in the work of secure schools or academies has always been seen as essential and welcome, so it is very concerning that proposed new subsection (2A) in Amendment 76 rules out consultation with local government or anyone else and makes consultation with local government only a possibility—and this for a part of our democratic structure which has been stated to have great value by the Justice Minister, speaking in the Chamber in January.

Restricting consultation with a local partner who has the statutory role for the provision of some services in relation to secure schools seems quite a bizarre approach. The words in the government amendment are quite clear: it will be a consultation on how the proposer of the secure academy should co-operate with local partners, and those are the local partners who the proposer of the secure academy thinks it appropriate to consult. There is therefore no duty for them to consult the local government of the area.

I would value an explanation of the ban outlined in proposed new subsection (2A)(a). I recognise that the siting of a secure academy is potentially controversial, so it appears that the rationale for the first part of the government amendment is to avoid normal planning requirements. If that is the case, I remind the Government of their failed policy to cut out local residents’ engagement when housing, building height extensions and other developments were proposed. Some government Ministers even suggested that this policy led to the Liberal Democrats winning the Chesham and Amersham by-election—oh joy.

These amendments seek to provide clarity. Although I recognise the difficulties of planning and siting a secure school as a principle—at the one in which I taught, local residents were extremely unhappy that they had these great thugs being taught near them—the Government should not ride roughshod over the rights given to local people through their local authorities. These amendments seek to recognise the importance of local government, in both the services it can provide and the representation of local interests that is part of its democratic mandate. I hope the Minister can clarify the Government’s intentions in respect of these matters, and as underlined in our amendments, as they affect secure schools or academies.

This is way above my pay grade, but I have been in the Minister’s position before. I humbly suggest, given the formidable opposition on her own Benches to the Bill, which threatens to undermine that of the opposition—we are doing our best, for goodness’ sake, but when it comes from the Conservative Benches it is quite difficult to match it—that she goes back to the department to put a stop on this Bill. We currently have three more days in Committee. I suggest they could be put to much better use than tearing the Bill apart.

[Lord Baker of Dorking (Con)]

My Lords, the amendments my noble friend has tabled really show how interconnected all the Bill’s clauses are. You cannot envisage one without the other; they are interdependent. It is very difficult to move an amendment to any one clause that does not affect other clauses.

I said last week that I would try to find out from our legal advisers the extent to which the Bill may threaten the charitable status of all schools. I had a letter this morning from our advisers, Stone King, one of the leading education law firms. I will read it to the Minister so that she and the officials can reflect on it:

“The Bill sees, accordingly, a material shift from a contract-based system to one which is statutorily controlled.”


At the moment, the relationships between schools and the Secretary of State are as a contract: it is an agreement, and both sides can change it. It is subject to contract law. The Bill would change that to statutory control.

The letter continues:

“It also introduces much more stringent termination powers which include not only existing termination rights, but also the ability for the Secretary of State to flood the board of an academy trust.”


The Secretary of State has never had that power in the past, ever since 1870. This is a fundamental change—a major shift of authority from local authorities to Whitehall. Local authorities were responsible for closures in the past, but then they had checks and balances: before a closure could be decided on, they would have to check with the local community, local councillors and parents. There are now no such balances.

The letter continues:

“It was considered that such flooding rights were incompatible with the independence of an academy trust as a charitable company and that a contractual breach should lead to a contractual remedy—not to seek to control … the academy trust itself.”


This matter has been dealt with by the Charity Commission in the past, so I ask the Minister to reflect on, or find out from her officials, what the exact position is. The position was that, before 2010, the Charity Commission was very concerned about the independence of schools, so it made them all statutory charities. That gave them certain very clear rights. The letter states:

“The Charity Commission had doubts, in the late 2000s, about the charitable status of academies given the controls which could be exercised then by the Department for Education and Skills … This led to the provisions of the Academies Act 2010 which made academy trusts charitable”—


all the schools in our country today are statutory charities. The letter continues:

“It would be very hard to see how the Commission would be at all comfortable with these additional restrictions, and it would be interesting to understand whether there has been any dialogue between the DfE and the Charity Commission”.


If the Minister says that there has not been, I intend to write to the chairman of the Charity Commission tomorrow.