Schools Bill [HL]

Lord Baker of Dorking Excerpts

Committee stage
Wednesday 8th June 2022 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is with some trepidation that I follow two such experts in education on these Benches. However, I see an uncanny parallel with what has happened in the health service, which I know a little about, and education. At about the same time that my noble friend Lord Adonis was proposing academies, in the then Department of Health we were proposing the creation of foundation trusts. The idea of NHS foundation trusts was to get out of the kind of micromanagement that the report today on the NHS talks about, and to give much more control locally, making those foundation trusts which were going to be the best performers much more accountable to local membership and to the population.

However, after the initial enthusiasm of my good friend Alan Milburn and the team of Ministers then, the normal centralising powers of the Department of Heath took over. Gradually, it has assumed more and more control again over those individual trusts. Now there is virtually no difference between a foundation trust and a non-foundation trust. Listening to my noble friends, I think that there is an uncanny parallel where essentially the Secretary of State for Education is giving himself the tools to have direct responsibility for each school within the system.

My ministerial experience of trying to run the NHS, where we had 300 bodies accountable to us, is that this will not end happily. Do Ministers realise that they will have to answer here for the performance of each individual school? Do they realise the enormity of that task? It then brings us to the problem that we have: that this Bill is ill timed because the department have not thought it through. Whatever our view on academies—there is a somewhat mixed view, on these Benches at least—there is general agreement that it is right for the Secretary of State to set some standards for our school system, and that there must be much more coherence in the system.

I was very struck by the pretty dispassionate report by the Institute for Government three or four months ago on academies, in which it makes the point that, with academies now making up almost 50% of all schools, we have a very inefficient dual system. Local authorities must still support a diminishing number of schools with declining resources, and the regulatory system for academies is incoherent, with financial regulations split from performance management and no single person or office in the system able to hold multi-academy trusts accountable for poor educational performance. The institute then says it is no wonder that far too many multi-academy trusts do not add value to the schools within their control.

The Minister referred at Second Reading to the accountability system and the ability of her department and its officials to hold the system to account. She said that Ministers were launching a review to establish the appropriate model and options for how best to regulate the English school system. Why on earth does she not do the review, see what the outcomes are, then bring legislation to your Lordships’ House and let us properly debate and seek to amend it? I urge her to listen to my noble friends and take this Bill back, or at least to pause it to allow for more work to be done and for us to have proper scrutiny of this vital legislation.

[Lord Baker of Dorking (Con)]

My Lords, I am not suggesting that we debate whether Clauses 2 and 4 stand part of the Bill at this moment; they are out of sync. We cannot discuss them until we discuss Clause 1 under the next group of amendments.

As has already been mentioned, I and my noble friends Lord Agnew and Lord Nash—both Ministers who have had direct responsibility for failing schools, my noble friend Lord Agnew for two years—have concluded that all the clauses from Clause 1 to Clause 18 should not stand part. We consider that this is a constitutional Bill and an enormous grab for power by Whitehall. It is quite amazing. Some people in the Department for Education have wanted this for years but have now given in to their worst voices. We think that the powers that they have are totally unacceptable in dealing with the problems.

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[Lord Addington (LD)]

I do remember that, but as a hereditary Peer I am probably more familiar than the noble Lord with the threat of abolition. That whetted axe been swinging around my head for a good few years; I dodged it once.

There is this idea that Parliament should not interfere in this process because that is naughty and bad. I hope that the Government will at least allow us to have some process where this is discussed or to at least point out how this process of shining a little light—and indeed pouring a little water, if we may take a plant analogy—on these things will work. How will we know what we are getting?

On the other amendments in this group, I am learning not to prejudge the noble Lord, Lord Baker. The interesting thing about certain schools and establishments set up outside the system is why they are brought in. The noble Lord nods at me; I will take that as a win.

On the final clause stand part notice in this group and the reports of the Delegated Powers and Regulatory Reform Committee and the Constitution Committee, I hope we can get a little further into those. I do not think I have ever been involved with a Bill which has had this type of reception. It is pretty appalling that the Government have done this. I therefore hope that the Minister will take this opportunity to tell us how the Government will make sure they know what is coming. If there is regulation and stuff that I have not seen where we can learn what is coming—it is not in the Bill—let us know where and point us in the right direction. Show us how it will be easily accessible and how we can have an informed debate that starts here and goes outside, and how it feeds in too. That, at the very least, is required if we continue to change the way the system works by regulation. I beg to move.

[Lord Baker of Dorking (Con)]

My Lords, I will speak to Amendment 27A. This speech will be very short. The amendment is defensive because, if Clause 1 continues to be part of the Bill when it comes back on Report, I will have to move it again, but of course if it disappears this amendment will fall. The Government realised half way through preparing the Bill that by giving such powers to the Secretary of State which have no checks or balances in them and no requirements for consultation, a maverick Secretary of State could abolish grammar schools and selection and could intervene with religious schools with regard to the amount of worship that they have. I am shocked by that. The noble Baroness, Lady Chapman, raised what would happen if we had Jacob Rees-Mogg as the Secretary of State for Education. I shudder at the prospect. Similarly, what would happen if you had a Corbynite Secretary of State? I shudder at that prospect as well, because the powers of direction are absolutely overwhelming.

Protections were introduced for grammar schools and faith schools because they were so different, and I think the schools I have been promoting are sufficiently different as well. University technical colleges are totally different from a normal school. Take, for example, their curriculum for 14 to 16. Our youngsters—the girls as well as the boys—will spend two days a week making things with their hands, designing things on computers, making projects which local employers bring in or visiting companies. That is totally different. A Secretary of State with these untrammelled powers could simply stop them doing that and therefore destroy the distinction of the school, so this is only a defensive amendment if the Government do not see sense.

I must congratulate the Minister on her reply. As she recognised, no one has spoken in full-hearted support of the Bill. The right reverend Prelate came close: he gave it a sort of half-blessing, but not a full one. Everyone else who has spoken was highly critical of it, so I hope this amendment will not be necessary when Clause 1 is withdrawn.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I have two clause stand part amendments, but also added my name to the amendments from the noble Lord, Lord Addington, and the noble Baroness, Lady Meacher. Fleetingly, when I heard the noble Lord, Lord Baker, suggest that a Minister could, at the stroke of a pen, abolish grammar schools, I warmed towards Clauses 1 and 3, but, as he suggested earlier, leaving aside the educational issues and the future governance and oversight of academies, some constitutional issues are involved.

As the noble Lord, Lord Addington, said, we cannot ignore the reports of our own Select Committees. The Delegated Powers Committee was clear that it issued new guidance to departments following its report where it said that it

“expected that bills introduced in the current session would reflect the principles set out in our report and revised guidance”.

This was a Select Committee of Parliament informing departments how legislation needed to be drafted in future. It was not a suggestion; it was a report of a distinguished Select Committee setting out how departments needed to legislate in future. It said that the principles were,

“first, that primary legislation, and the powers conferred by it, should be drafted on the basis of the principles of parliamentary democracy (namely parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament); and, second, that the threshold between primary and delegated legislation should be founded on the principle that the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegation”—

through secondary legislation. This appears to have been totally ignored by the Minister and her department. Why is that, and what factors did her department take into account when sending instructions to parliamentary counsel? Had it even looked at the new guidance set by your Lordships’ Select Committee? I very much doubt it.

In its recent report, the Delegated Powers Committee said that

“it would be possible for the Bill to set out the standards that apply to academies coupled with a power to amend them where speed and necessity really did require this to be done by regulations”.

In its note to the committee, the department essentially said, first, that it might need to act quickly and therefore Parliament could not adapt if standards needed to be changed and, secondly, that it was all too technical and detailed for Parliament to consider. Frankly, as the committee says, those are ridiculous arguments, because there are any number of ways in which Parliament can deal with urgent matters quickly. The idea that we cannot deal with technical matters in legislation is shown to be ludicrous given the technical details that we have in Bills day after day. I refer the Minister to the Procurement Bill, which is going through your Lordships’ House at the moment. It is extremely technical in detail, but I have great confidence that your Lordships’ House will be up to dealing with it.

The Minister said in relation to Clause 1 that the Government are not aiming to restrict freedoms, but they cannot speak for future Secretaries of State. The other thing she said was, “Don’t worry, this is all going to be sorted out through regulations, of which Parliament has oversight”. However, as the noble Lord, Lord Addington, asked, what can we do when we have regulations? We can have a debate for a maximum of two hours. We can make our points. We can pass a regret Motion, which has absolutely no effect. So I am afraid that that offer does not amount to very much.

Clause 3, which we have not yet discussed—I realise that there are amendments to it—is in a sense the most extraordinary use of a Henry VIII power. It allows a Minister to disapply any educational legislation from any school or other educational institution. It is the most remarkable, open-ended Henry VIII clause I have ever seen. As the Delegated Powers Committee said:

“It is not good enough to say that ministers, rather than Parliament, should be able to make law because ministers can be responsive to the needs of the academy trust system. So can Parliament.”


That ought to be Parliament’s role.

As noble Lords said in the debate on the previous group, this is a major structural educational reform. The noble Lord, Lord Adonis, is right: it is displacement activity because clearly the Government have not thought out what standards they want. They certainly do not know what structure of accountability they require in relation to academy trusts. That work has got to be done. Presumably, the department pulled something out. Departments always have legislative requirements. Every department always has a Bill up its sleeve—in the case of the Department of Health, in my experience, it always has three or four Bills up its sleeve—but it really is not good enough to say, “Everything will be all right. A lot of the standards are already there, we can bring a regulation and we are doing a review on the structure of governance”. We really cannot let this go.

I see that the noble and learned Lord, Lord Judge, is here. He made a very telling intervention in the debate on the Queen’s Speech when he referred to the growing imbalance between Parliament and the Executive. He referred to the two Select Committees’ reports and concluded—I am at risk of quoting Judge to Judge—by asking

“what is the point of us being here if … we never do anything … except talk?”—[Official Report, 12/5/22; col. 130.]

He hinted that, the next time a Bill comes along with a Henry VIII clause, such as Clause 3, that has not been given careful explanation in advance, we should “chuck it out”. I do not think he expected such a Bill to come along three weeks after he made those remarks but, my goodness, the argument for chucking Clauses 1 and 3 out of the Bill is very persuasive.

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[Baroness Meacher (CB)]

My Lords, I support the intention of the noble Lord, Lord Hunt of Kings Heath, to oppose the question that Clause 1 stand part of the Bill. I declare an interest as a member of the Delegated Powers and Regulatory Reform Committee, which has produced a highly critical report on the Bill. The noble Lord, Lord Hunt, alluded to this in many ways and I will try to avoid replicating what he said. However, I need to say that this report was exceptionally critical and that the committee sees the Bill very much as an outlier, and one we hope and expect that the Government will revisit.

I draw to the attention of the Committee and of the Minister an important 30-year review of delegated powers undertaken by the Delegated Powers Committee, which reported on 24 November last year. It was the first time such a review had ever been done and that report showed a steady diminution of democracy and of the powers of Parliament, and an ever-greater accretion of power to Ministers. Quite interestingly, the report is called Democracy Denied? This is an important issue and not a minor matter. We are talking about our democracy and we are losing it: that is the reality set out in that 30-year review. I hope the Minister and the Bill team read that, if they have not already.

The report points out the urgency of the need to redress this balance and shift power back towards Parliament and away from Ministers. Yet here we are, six months after its publication, with Clause 1(1)—an extreme and deeply concerning example of the skeleton Bill approach. One of the main criticisms in that 30-year review is the growing use of all sorts of delegated powers, but skeleton Bills in particular. Clause 1 provides no indication of what academy standards will look like or the principles upon which they will be based. In my view, and other noble Lords have said this clearly, Clause 1 should not stand part of the Bill.

The noble Lord, Lord Hunt, referred to the department’s memorandum attempting to explain why these delegations of powers are necessary. I want to spell out in more detail one of the two points the memorandum makes: there is a need for haste and to adjust as changes in educational needs evolve. Its real point is that you need principles and key standards in the Bill, then regulations are used to amend those standards—but not the principles; I hope the principles remain. It would be a big step forward from this, if we had a set of principles within which amendments might be laid. The speed issue, which is the department’s excuse for this level of delegation, is entirely unacceptable. The Delegated Powers Committee was clear on that point.

I think we have said enough about that, so I will move on to my Amendment 32 in this group. Again, I support the noble Lord, Lord Hunt, in his opposition to Clause 3 standing part. Amendment 32 is very important because it focuses on the Henry VIII powers in the Bill. The 30-year review focused strongly on the unacceptable nature of Henry VIII powers. Basically, the Secretary of State is saying that the Government do not want Parliament involved in wholesale reform, such as changes to Acts of Parliament over the years, but to get on and do that sort of stuff themselves. That is unacceptable, as noble Lords know and as the noble Lord, Lord Hunt, alluded to.

Statutory instruments have very little scrutiny; we are not allowed to amend them, but we can reject them, as my amendment on tax credits did. We rejected the statutory instrument. As the noble Lord, Lord Hunt, suggested, we were threatened with abolition; we had the Strathclyde review and were going to lose all our powers. The whole earth seemed to have been turned upside down, simply because we had deferred acceptance of those regulations. We know the scope for reviewing statutory instruments is incredibly limited compared with the detailed scrutiny that we can give to Bills. The idea of these Henry VIII powers within the context of a skeleton Bill is really quite shocking.

The Delegated Powers Committee is not the first committee to have drawn attention to the appalling nature of Henry VIII powers and the unacceptability of them, and here we have rafts of Henry VIII powers. The Donoughmore committee said that a Minister had to justify a Henry VIII power “up to the hilt” and that such powers should not be used “unless demonstrably essential”—not useful, but essential. As already alluded to by the noble Lord, Lord Hunt, the department’s memorandum utterly and completely failed to argue successfully that these Henry VIII powers are essential, as they simply are not. That is why we cannot accept what is going on here. The department argues the need to act swiftly, but I have already made the point that this can be done perfectly well by including the basic material in the Bill. There is an absence of policy development and the deferral of its creation, with it being left to Ministers. Clause 3 has to be completely rewritten and cannot be left as it stands. I therefore support the plan of the noble Lord, Lord Hunt, for it not to stand part of the Bill.

Exceptionally, the Delegated Powers Committee forwarded its report to the Secretary of State for Education personally. To my knowledge, we have never done that before. We do not do it, actually, but we felt that this case was extraordinary, in the skeletal nature of the central part of the Bill, combined with its Henry VIII clauses.

The Secretary of State replied to the committee’s report and said that he is taking note of our concerns. I find that helpful and I warmly welcome the approach of our Minister and of the Secretary of State. I, for one, as I am sure do all noble Lords, want to work with Ministers to ensure the yawning and total gaps in Clause 1(1) can be filled before Report. Deferring Report to the autumn is an interesting idea as, by this time, I hope there would be substance in the Bill that we could all debate as we should—by holding Ministers to account.

[Lord Baker of Dorking (Con)]

May I now formally move that Clause 1 should not stand part of the Bill? If I cannot do that yet, I will speak to it anyway. First, you cannot just abolish Clause 1 or Clause 3 by themselves. You need to go the whole hog and get rid of them all, as they are interdependent. I like what was done by the committee of the noble Baroness, Lady Meacher, but it was not quite strong enough. I am going to quote from the report and say how good it is, but it could be better.

Clause 1 is important because it creates the framework for the Bill. As I am sure colleagues will know, every school, maintained or academy, has to have an agreement with the Department for Education, which it signs. They will all be voided; that is what Clause 2 says. The schools will then have to accept a new agreement that has been drawn up entirely by the Secretary of State, as far as I can see without any widespread consultation at all. He has powers to vary the agreement at will under Clause 4. It is really quite extraordinary.