Schools Bill [HL]

Debate between Lord Baker of Dorking and Lord Hunt of Kings Heath

Report stage & Lords Hansard - Part 1
Monday 18th July 2022 Lords Chamber

[Lord Baker of Dorking (Con)]

My Lords, Report may be the last occasion on which this House will be able to consider the Bill because, as the Minister said, the suggestion is that it should get a Third Reading on 14 September. I do not know any example of a Government who do not yet exist determining whether a Bill should get a Third Reading. On 14 September there will be a new Government, who may have different views on the Bill. There will be different Ministers. I hope very much that the Minister will remain in her post because, quite frankly, she is the only Minister in the department who understands anything about education. She is surrounded by five Boris cronies who know absolutely nothing about education. They are there for a pay rise for five weeks and compensation for loss of office—a loss of office which will be richly deserved. I hope that she will survive, because she understands this Bill better than most.

The point I would like to make is that if we agree that the Bill should be voted upon on 14 September, there will be a different set of usual channels that may decide this, thank God—I should not have said that. There will be a different team. I am not insulting any of them individually; I would never do that. You do not insult the usual channels because you have to live with them, although you may never forgive them. To continue my point, I think the vote should be later than that.

I have had a most helpful letter from the Minister today setting out her intentions for the time that she is in office, saying that she will preside over a committee set up to begin the long process of determining what should be the relationship between the Government and MATs—multi-academy trusts. This is a very important measure because it is the creation of an administrative body that stands between the Department for Education and the rest of the schools. In the past, when we have set up administrative bodies of this importance, it has usually taken weeks, months, decades or, in some cases, centuries to determine the right relationship. In effect, many of these bodies will be local authorities and therefore the issues involved are of immense importance. What power do they have over the schools? Do the individual school boards count for anything? On what occasions can they cut or increase the money to the schools? On what occasions can specialist schools protect their specialisms? In the Bill as it stands, a grammar school or a religious school is protected in a multi-academy trust, but, as the amendment from the noble Duke, the Duke of Wellington, showed the other day, there are many other schools with specialisms in maths, science and dance, all of which are not really protected at the moment when they go into academy trusts.

The Minister set out in her letter that she hopes to have, or her successor might hope to have, findings by the end of September, then a consultation period and determinations by Christmas. In that case, if the Bill came to the Lords on 14 September, there is no way that amendments would appear in the Commons until early spring next year. The Bill will therefore not come back to us until summer next year, and it will involve issues that we know nothing about; we do not really know what the recommendations will be.

This is a unique situation in the constitutional history of the House of Lords. We have never been asked to pass a Bill to the Commons where half of the Bill is not known. In all fairness, the Minister does not know it either, because she has to consult on it with the committee. This has never happened before and I think it is highly disrespectful to ask this House to pass a Bill on the undertakings. As far as I understand, in this sort of situation, in spring or summer next year we will get a Bill with maybe 10 or 20 new clauses and we will be given a day. How lucky we are that we will get a day to discuss them all. I do not think that we should put up with this.

The House of Lords started this Bill, not the Commons, and the importance of starting a Bill in the Lords is that we can make radical changes to it without knowing whether or not the House of Commons has been whipped to support it. That is what we have done in this Bill. I hope that we might set an example for other Bills that start in the House of Lords to be much firmer in making amendments and changes. That is our power as a second Chamber. We do not have many powers, but we have that power.

I very much hope that we will not agree to a Third Reading on 14 September. The constitutional arrangements should be that it should remain pending for the new Government. They may well want to accept all the recommendations that my noble friend is working on, but she will not even know what they are because they are not going to agree the recommendations until the end of September, and she will either be in or out of office on 7 or 8 September. This great uncertainty leads me to believe that it would be imprudent for us to consider a Third Reading on 14 September.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I echo and support the noble Lord, Lord Baker. I do not understand why the Government are in such a hurry to have a Third Reading on the Bill when they have already agreed to take out the first 18 clauses. Those clauses will be subject to a review being conducted by the Minister. She will need to keep to a very ambitious timetable, because essentially this is about the situation of how all schools, under the White Paper produced earlier in the year, are to become academies by 2030. The matter that the Minister’s review is looking at is: what should the accountability system be for thousands and thousands of schools?

Even if the Minister reaches a conclusion by the end of September, a full consultation has to be held. At that point the Government have to make decisions. They then have to give instructions to parliamentary counsel to redraft Part 1 of the Bill. That is surely going to take many months indeed. I think the noble Lord is ambitious in thinking that this will be back with us in the spring. It could take very much longer. On that basis, why on earth are the Government going for a Third Reading? There is absolutely no need for it until they see what they are going to do to make the changes.

A second point I would like to make comes back to the points that the noble and learned Lord, Lord Judge, made at Second Reading and in other debates, and the noble Lord, Lord Baker, referred to it. The Government have sought to ride roughshod over this House in the nature of the drafting of the Schools Bill. We must set down a marker that this is unacceptable. I believe that we should not give this Bill a Third Reading until we have much greater assurances that when these new clauses come back—if they come back—we will go through a full process of Committee, Report and Third Reading before we can say that we have dealt with them satisfactorily.

Schools Bill [HL]

Debate between Lord Baker of Dorking and Lord Hunt of Kings Heath

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

[Lord Baker of Dorking (Con)]

I was reminded earlier by the Minister that there was a debate on Clause 3—I remember it very vividly—on the previous day. In fact, that was when the noble and learned Lord, Lord Judge, who is the Convenor of the Cross Benches, said it was outrageous and should be deleted from the Bill, but I do not remember an actual Motion being mentioned on Clause 3. I do not see Clause 3 mentioned in any of the amendments from 1 to 35. Clauses 1 and 2 were, and Clauses 1 and 4 were dealt with on Wednesday.

[Lord Hunt of Kings Heath (Lab)]

My Lords, with the greatest respect to the noble Lord—I very much agree with the thrust of what he has said—I actually did have a Clause 3 stand part notice, to which the noble Lord signed his name, so I think we did debate it. Our problem is that we want to debate it again, and when we come to the fifth group, we shall want to debate it again and again and again.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

Does the noble Lord wish to continue to discuss Clause 3 stand part?

Schools Bill [HL]

Debate between Lord Baker of Dorking and Lord Hunt of Kings Heath

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.

--- Later in debate ---

[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.