Schools Bill [HL]

Baroness Wilcox of Newport 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.

--- Later in debate ---

[Baroness Blower (Lab)]

My Lords, it is interesting to follow the noble Baroness, Lady Fox, because I do not entirely agree with her characterisation of what is going on in schools. I believe that there is a level of mental distress among our children and young people. I am sure it was exacerbated by the pandemic but I think it has been there for a very long time.

I was originally going to stand up only to say that there are lots of things schools can do in response to this issue without pathologising it, which is of course not desirable; I absolutely would not want that to happen. I do not really see that characterisation of schools becoming full of therapists. Frankly, all of our teachers’ time is taken up with doing the stuff that Ofsted tells them they must do, without also being therapists.

However, it is really important that we have extremely well-staffed CAMHS available to all our schools because it is perfectly clear that teachers cannot diagnose actual mental illness. Nor should they—that is not their role at all—but nor can they necessarily decide what level of intervention needs to be made by either them or anybody else if they think that a child has some kind of mental health difficulty. I would be happy for CAMHS to be not just a place to which children go—incidentally, if they are late for their first meeting, they sometimes do not get a second one because CAMHS are so busy—but a facility available to teachers not to deal with their own mental health but to make a proper, professional decision about whether a child is in some kind of mental health distress. The fact is that teachers are not trained or equipped to deal with this, but we are seeing quite a lot of it.

So I do not disagree with everything the noble Baroness said, but I do think there is a pronounced role for CAMHS and that, in most of the areas with which I am familiar, they are not sufficiently well staffed and resourced to ensure that they can respond to teachers’ issues and directly, face to face, to young people’s issues.

[Baroness Wilcox of Newport (Lab)]

My Lords, I will speak to Amendments 22 and 37 in my name and that of my noble friend Lady Chapman.

This group of amendments covers the other side of the argument—the matters for which the Secretary of State should be compelled to set standards to ensure the highest possible educational experiences for our children and young people. We have heard admirable intent from the noble Baroness, Lady Brinton, and others around mental health, SEND and extracurricular activities. Education should not and cannot be just about grades; the whole needs of the child must be considered.

I spent the vast majority of my teaching career working in areas that were not central to the dictates of the national curriculum: the performing arts and creative subjects that gave a wealth of support and experience to children’s learning. Above all, the pupils enjoyed what they were doing, which enhanced their learning and their overall mental and physical health. I have former pupils who have graced West End stages, both front and back of house, and I am very proud of them; but I have hundreds who are not in the entertainment business and who always remind me of their enjoyment of drama lessons and their roles in school productions when they see me in person or via social media.

At lunchtime today, I spent half an hour in our education centre with a group of year 12 pupils from a school in Edgeware. One of the many interesting and searching questions they asked me was, what drives me as a politician and what do I stand for? I was able to say to them, very honestly, that my public service has always been about them—children and young people—and ensuring that they get the best possible start in life with the highest-quality teaching and learning across the whole of the UK, in all our nations and regions.

It was good to be back in a room full of engaging and inquisitive minds on a Wednesday afternoon. I would not want to do it every Wednesday, but it was very good to be back with year 12 again. The teacher texted me afterwards to say how much they had enjoyed it and how much they had revised their view of what the Lords is—so I hope that I did some good for us all—and that they saw that politics can be a force for good, despite the current world view of us here in Westminster.

Our proposal of powers to set standards for work experience and mental health, at the same time as us tabling limits on the Secretary of State’s powers, speaks to the inherent contradiction in this Bill that we are working around. The Government have not put in the Bill the outcomes that they are looking for, whether benign or otherwise. If they settle on imposing standards on academies, that is one thing, but if so they should include these on work experience and health. The Government have given us a vague list of standards which the Secretary of State “may” regulate for. We are flying blind and attempting today to fill in the gaps as best we can. If the Government are intent on this sweeping approach, it is imperative that these issues are included, but we would prefer a strong list of standards that the Secretary of State must regulate around, and using a narrow list already identified in existing education legislation would be helpful to teachers and the Secretary of State alike.

To reiterate, we want the best for our children and young people. That is why we say in Labour’s Children’s Recovery Plan that we would deliver breakfast clubs and new activities for every child, quality mental health support in every school, small-group tutoring for all who need it—not just 1%—continued development for teachers, an education recovery premium and, as we have already done with a Labour Government in Wales, we would ensure that no child goes hungry, by extending free school meals over the holidays, including the summer break. That is a definite set of policies, not a vague list as identified in the Bill.

[Baroness Penn (Con)]

My Lords, as the noble Baroness, Lady Brinton, has said, we have exchanged our telescopes for microscopes and got on to a discussion about the indicative list provided in Clause 1(2). These amendments seek to expand the academy standards regulations, including what those regulations may cover.

As we have debated before, a key part of what this Bill seeks to do is taking existing academy standards set out not in regulation but elsewhere, bringing them together and subjecting them to parliamentary scrutiny. I assure noble Lords that, in each of the areas that they have raised, it is not necessary to amend the Bill for those standards to be included in the future regulations; this is already provided for. However, we also have the other side of the balance to strike in protecting those freedoms that academy trusts have to innovate and make decisions about how they best deliver education for their pupils. Through existing legislation, statutory guidance and their present funding agreements, academy trusts must already meet requirements in each of the areas that noble Lords have proposed. We will seek to replicate those in the standards regulations but that is not the end of the Government’s commitment or work in those areas. It can be delivered in multiple ways, as I will try to set out in my response.

First, Amendments 8 and 37 both raise the important topic of mental health. I agree that schools play a vital role in safeguarding pupil mental health and well-being, which is captured principally by how they carry out their wider duties on the curriculum, behaviour, SEND and safeguarding. Our statutory guidance on these issues sets out how mental health should be factored into what needs to be taught in health education, through to identification of social, emotional and mental health needs as part of the SEND code of practice and information on supporting mental health as part of the Keeping Children Safe in Education guidance.

We have also issued non-statutory guidance to support all schools, including academies, to take effective action, including on whole-school approaches to mental health, behaviour and the effective use of school-based counselling. The noble Baroness, Lady Blower, talked about the importance of access to CAMHS for schools and the pupils within them, and the noble Lord, Lord Hunt, placed this discussion in the context of some of the health reforms in the Bill that we took through in the last Session. They are both absolutely right, and I undertake to write to him on the involvement of educational institutions in areas’ ICBs and ICPs.

This goes to the heart of saying that setting the academy standards is not the sole route to or the end of the conversation about the importance that the Government place on an issue or the effective intervention we can put in place to support it. A big part of mental health is about investing more money into NHS children’s mental health services, as we have done. We have announced an additional £79 million towards that and have invested an additional £70 million to build on existing mental health support in education settings.

Several noble Lords talked about pupils’ mental health during the pandemic and its effect on them. Our recent State of the Nation report shows that children and young people’s well-being is gradually improving from the impacts of the pandemic. That highlights the link between regular school attendance and positive well-being, in demonstrating how critical face-to-face learning is.

Another specific action we are taking is a commitment that was part of the NHS long-term plan to increase the number of mental health support teams in schools and colleges to cover approximately 35% of pupils in England. I believe we are ahead of target on that. This is just to say that we can make standards in this area under the legislation as it is written. We will seek to replicate the standards that exist for academies as they are, but we completely understand the importance of mental health as an issue and this is not the only way in which we will address it.

Amendment 9 brings the welcome opportunity to focus on special educational needs and disability. The Government are just as ambitious for children and young people with SEND as for every other child. Again, I reassure the noble Lord, Lord Addington, that the academy standards regulations will reflect existing requirements on academy trusts, including those on SEND. For example, the Children and Families Act 2014 already requires mainstream schools to use their best endeavours to secure the special educational provision required by a child or young person, and there are provisions in funding agreements that require academy trusts to ensure that their academies meet the needs of individual pupils, including those with special educational needs and disability. Academy trusts must also have regard to the special educational needs and disability code of practice, which requires there to be a qualified teacher designated as the special needs co-ordinator in each academy. All these requirements will be reflected in the academy standards regulations.

The Government recently published our SEND and alternative provision Green Paper, which includes a proposal to introduce national standards for the support that should be available for children and young people with SEND. As the noble Lord, Lord Addington, knows, that proposal is currently out for consultation, and responding to that is the best vehicle to progress policy on these important matters. Should the outcome of the consultation determine that new national standards on SEND are required, we would consider including them in the academy standards regulations, as the Bill is drafted.

--- Later in debate ---

Moved by

[Baroness Wilcox of Newport]

28: Clause 1, page 3, line 10, at end insert—
“(9) The Secretary of State must publish—(a) an annual report on the exercise of the powers under subsection (1), and(b) an annual impact assessment on the exercise of those powers.(10) Before exercising the powers under subsection (1), the Secretary of State must consult relevant groups, including parents, teachers and governors, on the use of such regulations.”Member's explanatory statement
This amendment would require the Department for Education to seek the views of groups including parents, teachers and governors on how academy regulations are implemented, and then allow sight and scrutiny of the use of the new powers.

[Baroness Wilcox of Newport (Lab)]

My Lords, this group is another trying to put safeguards around the Secretary of State’s powers to set academy standards. In the absence of proper parliamentary scrutiny mechanisms, industrious noble Lords have sought to add their own. My amendment would require the DfE to consult parents, teachers and governors on how the regulations are implemented and then allow sight and scrutiny of the use of the new powers by way of reporting and assessing the impact that use has had.

For such a sweeping change to a crucial area of social policy, we believe that this amendment is proportionate and only right to allow meaningful public scrutiny. If the Secretary of State is overreaching or, equally, not doing enough to intervene in a specific case, it would allow that to become public knowledge and the public, expert stakeholders and parent groups to make the case for change.

My Amendment 83 would subject to the affirmative procedure the Secretary of State’s power to give any person they choose responsibility to judge an academy’s compliance with standards. Such a large empowerment, with the potential to place all-important judgments with anyone that the Secretary of State wills is surely worth giving Parliament sight of, and anyone involved in the process of proper scrutiny and democratic accountability should have little problem agreeing to the amendments. I thus beg to move.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I strongly welcome my noble friend’s amendment. I, along with my noble friend Lady Blower, have a number of other amendments in this area.

I want to encourage the Minister to say something about this. Clearly, she has heard all our concerns about Clauses 1 and 3. I just want to suggest that one way through may be to consider the super-affirmative procedure for dealing with the issue of standards. We debated earlier the issue that even an affirmative instrument allows us only a debate. The advantage of the super-affirmative procedure is that it allows both Houses of Parliament opportunities to comment on proposals for secondary legislation and recommend amendments before orders for affirmative approval are brought forward in their final form. The idea of the super-affirmative procedure is that those orders are implemented in enactments where an exceptionally high degree of scrutiny is thought appropriate—for instance, for the scrutiny of certain items of delegated legislation made or proposed to be made under Henry VIII clauses.

Take my noble friend Lady Chapman’s earlier amendment, in which she sought to replicate the standards in relation to independent schools and said that, basically, this would give a much more explicit set of standards to work on. If you combine that with the super-affirmative procedure, you might achieve a greater and more effective way whereby Parliament could scrutinise what the Government seek to do. However, I really do not think that simply having regulations is the way to do it. I urge the Minister to consider this procedure as one way through, because it would give Parliament an opportunity to comment on the draft regulations and the department an opportunity to go away and consider it before coming back with the substantive order. In some ways, this would be a very good way to deal with some of the issues in this Bill.

--- Later in debate ---

[Baroness Barran (Con)]

My Lords, this group of amendments seeks to apply additional procedural requirements to the use of the powers in Clause 1. I have heard again your Lordships’ concerns about the centralisation of power over academies with the Secretary of State but, again, we want to do this so that we have a regulatory system which is more transparent and accountable to Parliament than the one which we currently have.

The noble Lord, Lord Hunt, invites me to consider carefully the super-affirmative procedure. The spirit of the regulations is that they will be subject to the affirmative procedure each time they are laid, allowing Parliament the opportunity to scrutinise, debate, and vote on them. We recognise the importance of consulting representatives from the sector on regulations and, as I have said before, the Government will always undertake a consultation on the regulations prior to them being laid.

The noble Baroness, Lady Bennett, referred to the report and impact assessment on the exercise of the powers. The Secretary of State will of course consider very carefully the likely and actual impact on academy trusts of any standards set out in the regulations.

Turning to Amendment 83, I say that Clause 1 is not designed to increase burdens on academy trusts, and that includes burdens associated with regulatory compliance. Clause 1(7) allows the conferral of the Secretary of State’s regulatory functions to another person. It is important that we ensure that the right accountability arrangements are in place. In some cases that will be ensured by Ofsted and Ofqual. It is already the case that the Secretary of State can delegate responsibility for some elements of regulatory compliance, such as in relation to the monitoring of exams and other assessments. The provisions in Clause 1(7) ensure that this can continue to happen under the academy standards framework. I therefore invite the noble Baroness to withdraw her amendment.

[Baroness Wilcox of Newport (Lab)]

The Minister noted that the Government want a more transparent and accountable way forward, but this whole debate has seen strong arguments from all sides of the House, from former Secretaries of State, in direct opposition to this view. I hope that the Minister has been listening, as I am sure that she has, but the story continues, as do the probing amendments and the demystifying of what on earth is going on here, while wanting the central purpose to remain the raising of standards for young people. With that in mind, I beg leave to withdraw my amendment.

Amendment 28 withdrawn.