Education (Guidance about Costs of School Uniforms) Bill

Lord Blencathra Excerpts

Friday 16th April 2021 Lords Chamber

Moved by

[Lord Blencathra]

1: Clause 1, page 1, line 15, at end insert—
“(4A) The Secretary of State must lay the guidance and any revised guidance before Parliament, and when he or she has done so he or she may bring the guidance or revised guidance into operation by order.(4B) A statutory instrument containing an order made under subsection (4A) is subject to annulment in pursuance of a resolution of either House of Parliament.”

[Lord Blencathra (Con)]

My Lords, my amendment would ensure simply that the statutory guidelines could be scrutinised by Parliament in the lowest form of scrutiny we have: namely, the negative procedure. My amendment could not be more simple or reasonable. It says simply that the Secretary of State must lay the guidance before Parliament and may bring it in by the negative procedure. That procedure, as we all know, allows the guidance to take immediate effect, but would permit parties in Parliament, if so minded, to debate it. Just as with the thousands of other SIs which pass through here every year, there would probably be no debate, no objection and no vote—but at least our excellent Secondary Legislation Scrutiny Committee would get a chance to have a look at the regulations. That is all my amendment seeks.

I criticised the Bill at Second Reading on these grounds, and also because we had not seen a draft of the guidance that we were being asked blindly to rubber-stamp. Well, I am able to give some mild praise to the Minister before I start on some mild criticism. The department has now published the draft guidance, which is very helpful for all of us. I appreciate that it may change and that more people and organisations may have input into it, but this House has usually demanded, and rightly so, to see any draft guidance or draft regulations that we are being asked to take on trust.

For the avoidance of any doubt, I thoroughly approve of the Bill and am not opposed to it. Indeed, if there was an opportunity to have the other place deal with our amendments before the end of this Session, I would push this amendment to a vote, and I would put down another amendment insisting that all schools create, either by themselves or through parents or a charitable trust, a system for used and second-hand uniforms. As a soldier in a Highland regiment, the only bit of new kit I had, out of scores of items, was boots and socks. Everything else was used, cleaned, repaired, refurbished and reissued—and by God we were proud to wear it. The only thing I rejected was second-hand long johns—I assure noble Lords that they do not want to wear second-hand long johns from a Scottish soldier.

When I spoke at Second Reading, I said that I was speaking in a personal capacity and not as the chair of the Delegated Powers Committee. Since then, the committee has met and published a report on the Bill, and it has identified, in its usual and meticulous way, the inappropriate delegated powers in the Bill that my amendment seeks to address. I can tell the Committee that I had no part in those decisions or discussions. I was absent when the Delegated Powers Committee approved the report, so I have not influenced its decision. However, I am informed that the committee wholeheartedly approved of the line that I took at Second Reading: namely, that the guidance should be subject to some simple parliamentary scrutiny.

Since Second Reading, the department has produced a delegated powers memorandum, and I am grateful for that. It should have been done in the first place, but the Department for Education is not unique in that failing—not by a long shot. The department makes four justifications for the guidance not being subject to the negative resolution procedure. First, it says that the guidance will be drafted after consultation with parents, schools and stakeholders, and taking into account comments made by parliamentarians as the Bill progresses through Parliament. But the Delegated Powers Committee says, “That is all very jolly good, but there is no justification for the finished guidance not then being scrutinised by Parliament if Parliament wishes to do so”.

Secondly, the memorandum states:

“The Department produces a large amount of detailed and technical statutory guidance to support schools and the wider education sector”,


and, since that has not been subject to parliamentary scrutiny in the past, the new guidance is simply consistent with past procedure. The memorandum uses the phrase:

“Parliament has already determined that guidance should not be subject to Parliamentary scrutiny.”


Has Parliament actually determined that? Correct me if I am wrong, but did Parliament ever make a decision in principle that it would not scrutinise any guidance from the DoE? Is it not the case that guidance has already been issued, and Parliament has been unable to challenge it—unlike as we are able to do today? It is more an act of omission than a deliberate act of commission not to scrutinise guidance from the department. In any case, as the Delegated Powers Committee report points out, what was done in the past is irrelevant: each Bill should be considered on its own merits, and this Bill deals with nothing other than statutory guidance.

Thirdly, the department’s memorandum says:

“The statutory guidance is not equivalent to … Education Codes of Practice”,


which are

“broad and extremely detailed texts which … have many aspects which are controversial and may require debate and amendment.”

It says that this is a “very limited document”. Well, the Delegated Powers Committee says that the fact that the guidance may or may not resemble a code of practice does not mean that parliamentary scrutiny of it should be ruled out. The Bill is concerned exclusively with a certain type of guidance, yet Parliament has been asked to sanction the production of guidance that will never be required even to be laid before Parliament.

It may be a limited document, but it is far from non-controversial. We have all seen the excellent briefing from the Schoolwear Association, and it strikes me that there will be strong arguments made by different parties about branded items and single supplements. Indeed, there were quite firm and differing views expressed at Second Reading in this House on branding and single suppliers—indeed, seeing the noble Earl, Lord Clancarty, in his place, about the fact of having a uniform in the first place. While we may all instinctively think that multiple suppliers will deliver cheaper items, that may not necessarily be the case, and I can envisage legal challenges arising from various quarters. I simply say that it cannot be right that the courts will end up interpreting legal guidance that Parliament will never have seen.

Fourthly, the department says that the guidance will be published in such a manner that it will be accessible to all who need to see it. I should ruddy well hope so, but that has nothing to do with letting parliamentarians have a look at it, even in the most minor of parliamentary procedures, before it is published. If an entire Bill can be dedicated to the cost aspects of school uniforms, the resulting guidance is important enough to be subject to a parliamentary procedure.

I am glad that the memorandum does not seek to make the point, which was made at Second Reading, that the guidance cannot be approved by regulations because it would have to be amended regularly. The department has kindly confirmed, in a Written Answer to me, that the current guidance has not been amended once since 2013, so there is no justification for resisting parliamentary scrutiny on the grounds that the guidance would have to be constantly amended and brought before Parliament.

Finally, I will make one observation—or rather, a political guess. I think the House will want to see more and more of our homegrown regulations and guidance. Until 31 December 2020, the Government could bounce through thousands of regulations implementing EU law and we all knew that it was pointless challenging them, since we had to implement them verbatim. All that has changed. I suspect that the whole voracious judicial review industry is waiting to challenge every regulation made by Ministers, because the Government will no longer have the watertight excuse of saying, “No point taking us to court, my learned friend. It’s not us, guv, it’s the EU”.

As we make our own laws, so this House will want to challenge more of our own laws. The debate on this little Bill and guidance is just a taster of what I foresee, and what I welcome, happening in Parliament when this House is back in full physical mode and our 850 Members are looking for things to do. However, that is a more philosophical debate for another day.

I end with the conclusions of the Delegated Powers Committee report:

“The fundamental problem with the Bill is that the statutory guidance affords the maximum of discretion to the Government with no opportunity for parliamentary scrutiny. Accordingly, we recommend that the guidance should be subject to parliamentary scrutiny, with the negative procedure being appropriate in this instance.”


I look forward to my noble friend the Minister’s response and I beg to move.

[Lord Blunkett (Lab) [V]]

My Lords, when a balloon has the air let out of it, it appears to be merely a piece of useless rubber. I have a view about what I call the “Chope approach” to Private Members’ Bills—Christopher Chope, as Members will know, has familiarised himself with just about every piece of private Members’ legislation going through the House of Commons in order to filibuster or find a way of blocking it. I really hope that the mover of the amendment will respect the fact that this is a very small but important Bill in terms of what happens in real life, out in the school communities that our children, grandchildren, nephews and nieces attend.

I hope that this afternoon we will lay aside this amendment, which is designed to block the Bill if it is pressed; the mover acknowledged that himself, of course. He also talked about the Scottish long johns. My grandchildren’s school—Windmill Hill in the north of Sheffield—has a little scheme along similar lines. We were talking only this morning about how important that approach is in helping to ensure that nothing is wasted and that no one feels as though they are disqualified from being able to present themselves effectively because of their income. That is what, in essence, this Bill and the guidance are all about.

It has taken 50 years to get to this point, it has to be said. So often, the issue of school uniforms was about class and the quality of the school you went to. It was about grammar schools versus secondary schools; the grammar schools took pride in their uniform and their distinguishing features, and others often felt resentful. Times have moved on—thank God—but I recall that, over 40 years ago, we should have learned in my party about how disastrous referenda can be when you hold them with the distinct intention of ensuring that, if you are defeated, you will carry on regardless.

In Sheffield at the end of the 1970s, just before I became the city council’s leader, it decided, because of the enormous cost of school uniforms, the class nature of what was taking place and the fact that poor people were struggling to keep up, that school uniforms should be abolished and put it to a referendum of all parents. The parents were in fact a couple of decades ahead of the city council and voted to keep school uniforms and to develop them in the schools that did not have them. The city council, in its arrogance at the time, decided that it would, on political grounds, do away with school uniforms whatever the vote. We learned a lot from that. I certainly learned that if you are going to ask people their opinion, you respect it.

This afternoon, we are respecting the desire of schools, whether they are local authority schools, multi-academy trust schools, or individual free-standing trust schools, to display the pride of parents and pupils in the school they go to and the quality of the education they receive, so that they can go forward in life not embarrassed at having been unable to afford the uniform, but proud to have been able to adopt it.

The Bill is very simple: in its small way, it allows that possibility by ensuring that the old-style disqualification of competition, availability and access is set aside. I cannot see how anyone, from any political party, could possibly oppose it.

--- Later in debate ---

[Baroness Berridge (Con)]

I will take the opportunity to write to the noble Lord. It is a matter for local authorities whether they choose to make grants available, but we are not proposing to introduce school uniform grants. As I have outlined many times to noble Lords, there has been an increase in general school funding over these three years to enable some schools that want to assist to do that. If the noble Lord requires any further details, I will write to him.

[Lord Blencathra (Con)]

My Lords, naturally I am very grateful to all noble Lords who have spoken in this debate on my amendment, especially to the Minister for her response. I first wish to thank the noble Baroness, Lady Lister of Burtersett, for her kind words to me. I will take some of the credit—indeed, a lot of the credit —for forcing the Government to produce the statutory guidance and the memorandum before this debate, which I think we all found helpful.

I congratulate the noble Earl, Lord Clancarty, on being able to put firmly on the record what he thinks on this matter. He was done an enormous disservice in the press a couple of weeks ago, with gross misreporting of what he had said—indeed, what we had all said. I think the headline was, “All Peers call for complete abolition of school uniform and kids to go around scruffily dressed as from tomorrow”. They were appalling headlines. I congratulate the noble Earl on speaking again today.

I am grateful to my noble friend Lord Moynihan for putting on the record that we should pay attention to the comments of the Delegated Powers and Regulatory Reform Committee, which—this is nothing to do with me being chair; it is long before my time—has done tremendous service to this House in producing guidance on what it thinks is inappropriate delegation.

I am also grateful to the noble Lord, Lord Watson of Invergowrie, who said the principle of my amendment is right. I think nearly everyone who spoke today agreed that the principle of my amendment is right; the only thing wrong with it is the timing. If we were to go ahead with it, it would sabotage the Bill. I made it clear that I have no intention of doing that.

I am therefore disappointed that the noble Lord, Lord Blunkett, for whom I have tremendous respect, has inadvertently done me a disservice today in suggesting that my amendment seeks to block the Bill. All I have done is make four points—the same four points made by the Delegated Powers and Regulatory Reform Committee. I remind the noble Lord of those wonderful days between 1997 and 2001 when he was in government and my late friend Eric Forth MP and I were in charge of sabotaging every Friday Bill that came up in the Commons, most often with the connivance of the Labour Whips behind the Chair, who were as appalled at some of these measures as we were. My friend Christopher Chope was just one of our protégés. As the football manager says, “The boy done good. He’s coming on well”—but he is not a patch on Eric and me in our prime. If I wanted to block this Bill, there would be 20 amendments on the Order Paper today and I would be filibustering until midnight, but that is not what I intend.

So I shall not detain the House long nor repeat all my earlier arguments, even though I believe that the arguments which I have advanced and those in the Delegated Powers Committee report are superior to the Government’s case. There is no right or wrong answer here; it is a matter of belief in how much scrutiny this Parliament should give to regulations, guidance or circulars from the Executive. I have no particular grievance with the department nor with my noble friend the Minister, who is an excellent Minister; there are far worse offenders as far as inappropriate delegations of ministerial power are concerned, and the Delegated Powers Committee, which I am privileged to chair, constantly draws attention to them.

In the past few years, we have seen extensive abuse of Henry VIII powers, now tacked on to every Bill ad nauseam. Bills use only negative and affirmative procedures, and never are they made or draft affirmatives; we see the test for the Minister making laws reduced from necessity to one of “appropriate”, or, in this Bill, whatever the Secretary of State considers “relevant”. We now see the extraordinary term “protocols” used instead of “regulations” to avoid parliamentary scrutiny, and skeleton Bills are a regular occurrence without any justification for them in the memorandum.

All departments have got into the habit of building in excessive delegated powers and attempting to stop Parliament having a look at them, even through the negative procedure. I am sorry that my noble friend the Minister drew the short straw today to take this general criticism of far too much of our legislation having inappropriate delegations. Having said that the statutory guidance should be introduced by order, this whole Bill is only about making statutory guidance, and it should be judged on its merit and not in comparison to masses of other education legislation.

In conclusion, while my amendment is absolutely right in principle and in practice, and should be passed, I am aware that there is only one argument against it: that this excellent Bill would fall if I went ahead with it. The House should not be in a position to face that unacceptable Hobson’s choice in future, but I beg leave to withdraw my amendment today.

Amendment 1 withdrawn.