Schools Bill [HL]

Lord Bishop of Durham Excerpts

Committee stage
Wednesday 8th June 2022 Lords Chamber

The only accountability I understand, unashamedly—it may be old fashioned, but I am not afraid of that—is local accountability that looks at schools as responsible not simply for their own education but for the education of the whole community and the interrelationship between schools. To me, that was at the heart of it. We are not discussing those arguments today, and I will certainly not try to develop them, but my noble friend put her finger on it, and I hope the Minister responds. This is a new school system, and it is one without accountability because the accountability offered—the Secretary of State—can be only fictitious accountability.

[The Lord Bishop of Durham]

My Lords, I have to declare my interest as chair of the National Society, which oversees Church of England schools, although obviously they are all devolved around each diocesan board. I also apologise that I cannot be here for days two and three in Committee. I have a long-standing family holiday booked, and my marriage and parenthood are more important. I assure noble Lords that things will be covered by other Members on these Benches.

I have been told clearly by Members of this House that I should be very concerned about Clause 1, and indeed Clauses 2, 3, 4, 5, 6, 7, 8 and so on. Because of the nature of the people who have expressed those concerns, I listened very carefully. However, in principle I am persuaded that the move towards full academisation warrants the Secretary of State being given some additional powers. I disagree with a large number here: I think the direction of travel is abundantly clear. It is full academisation. If that is the direction of travel, we need to ensure that system is appropriately covered.

The Secretary of State has always had some powers. For example, because of the new Diocesan Boards of Education Measure, all dioceses have recently had to produce a new diocesan board of education scheme. Every single one of those has had to be submitted to the Secretary of State to sign off. Not in one instance has the Secretary of State asked any questions back of any diocese because, with the process that has been gone through, the schemes never landed on the Secretary of State’s desk until we knew that they would be happily signed off. So some powers already exist, and there is an argument that some need to exist in what is the emerging new system. We have to move away from the contract-by-contract basis that we are currently operating with academies. To put them all on a statutory basis makes complete sense.

That said, along with everyone else, I express deep concern about the way the clause is drafted. Oddly, it is both too loose—what are “examples” in legislation?—and too prescriptive and interfering. Somewhere, that balance has gone completely skew-whiff in the way it is worded.

Clear boundaries need to be established. I have looked and thought very carefully and, contrary to the noble Lord, Lord Young, I think that the Amendment 1 is correct in saying “must”, but it has to then go with Amendments 3, 6, 9 and 13—and possibly Amendment 11, which is in a different group. We need it clearly stated, and these seem very clear around what standards should be set—and then they will leave academies free in all the ways in which we have said that they need to be free to set a lot of their policies.

I hope that the Minister and the whole team will be open to taking these amendments and the concerns raised seriously and that they will return on Report with a very different Clause 1. I hear what was said about not returning to Report until the autumn, and I think that is very wise advice.

[Baroness Bennett of Manor Castle (GP)]

I rise towards what I imagine is the end of a very rich and telling debate. We have seen huge expressions of concern about this Bill, and particularly the initial stages of it, from all sides of your Lordships’ House. I agree with the noble Baroness, Lady Morris, about the difficulty of amending the Bill. I am working with a number of campaign groups and parent groups, trying to work out how to deal with the lack of clarity, the incoherence and contradictoriness of so much of the Bill, and it is proving very difficult. I apologise in advance that, normally, I try to put down all my amendments before the first day in Committee, but I have not managed it this time, because there is so much—and so much concern out there.

I shall try not to repeat what has already been said by others, but I have to begin the debate on this Bill by reflecting back on my 10 year-old self. When I was 10 years old, I was absolutely fascinated by and loved lungfish. They are absolutely amazing and fascinating creatures, and I remain amazed and fascinated by them, but I do not believe that every child in this country should be made to learn about lungfish. That picks up the point made by the noble Baroness, Lady Chapman. Many of us have things that we think that everybody should know, but the person who should help children to discover the things that they are interested in—the teacher in the classroom with them—is the person who can best help every child to learn what fascinates them, what interests them and what will be of use to them and their community. Clause 1, in particular, is heading in the opposite direction.

I attached my name to Amendment 13, in the names of the noble Baronesses, Lady Chapman of Darlington and Lady Wilcox of Newport, as a bit of a sample and a case study. This is where the Secretary of State is given the power to direct the amount of teaching across the school year. Let us think about the very different situations in which schools find themselves at this moment—although it could be at any time—at the tail-end of a hugely destructive and damaging pandemic. Let us think about a small rural school to which pupils have to travel very long distances from a very young age, with long travel times and difficult travel. How can a Secretary of State sitting here in Westminster say, “You have to do this many hours”, even when the head teacher and the other teachers know that their pupils are exhausted, worn out and struggling? There needs to be a balance in people’s lives and a balance in the way of teaching.

I am thinking about the idea that you can apply one rule to something as simple as the number of hours of teaching in a year. How do you classify what teaching is? Of a day spent going out walking through a national park and exploring it without any particular formal curriculum elements, but giving pupils the chance really to experience and be in nature, is a Secretary of State going to say that it does not count in their hours? How can that possibly work?

I want to pick up on one interesting point that the noble Lord, Lord Knight of Weymouth, made about Ofsted. He suggested that it could just inspect multi-academy trusts under the Government’s proposal. Now, the Green Party wants to abolish Ofsted but what the noble Lord proposed might be a really interesting step along the way, given that we know how immensely damaging Ofsted’s visits to individual schools are. I do not agree with making every school become an academy or part of a multi-academy trust, but that is a really interesting example of the way that this whole debate has run, and of how the Bill is half-baked and not thought through. There are so many possibilities and different ways in which it might develop.

I want to say one final thing. Perhaps to the surprise of the House, I am going to bring up Brexit—not because education ever had anything to do with the European Union but because the slogan that essentially decided the result of the Brexit referendum was “Take back control”. I do not think people were really thinking then, or think now, that the right thing is to have taking back control mean that the Secretary of State for Education has control, at a fine, detailed level, of the education of every child in this country.

--- Later in debate ---

[Baroness Morris of Yardley (Lab)]

My Lords, I have a specific question about Clause 1(6). It is odd to say that a standard may not be set about determining whether academy grammar schools should retain selective admission arrangements. When I first read that, I understood it as an assurance to grammar schools with selective admission arrangements that this was not an intention to change them, in the same way that there is an assurance to faith schools in the same clause. However, I want reassurance that this would not prevent any future Government changing the law if they wished to abolish selective education.

[The Lord Bishop of Durham]

My Lords, I thank the noble Lord, Lord Baker, for something he said in his speech that helped me understand why I am more half-hearted in my support than others. I hope he will forgive me if I misquote him, but he implied that there had been no thought about areas that could be badly affected, including faith schools, until later. Actually, the Secretary of State and the Minister have been incredibly helpful and supportive in discussions with us about some of the later clauses. The department recognised that there are growing issues connected with voluntary-aided and voluntary-controlled schools and the move to MATs, which need to be dealt with and must be dealt with by legislation. Our experience has been of working behind the scenes with Ministers and officials in a very positive and helpful manner. That perhaps explains why we approach it more positively. Therefore, I say thank you and completely support the noble Lord’s Amendment 27A on the same basis—that these schools should have the protections.

However, picking up the concerns I expressed earlier about the overreach of the Secretary of State’s powers proposed here, I support the thrust and purpose of Amendment 2. The period is possibly too long but that is debatable. It is a proposal that helps to protect. It enables others from the sector to engage with us and for us all to express our opinions about proposed regulations, so that those regulations can be properly debated, the report can come back and the regulations can be amended. Amendment 2 is a really helpful proposal in principle, to assist with the restriction of the Secretary of State’s power.

[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.