Schools Bill [HL]

Lord Hunt of Kings Heath Excerpts

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

[Lord Knight of Weymouth (Lab)]

My Lords, I have a lot of sympathy with the intervention from the Front Bench by my noble friend Lady Chapman around the unfortunate nature of the grouping of these amendments. I understand that there are reasons why technically the Government might want to bring forward amendments, and I accept that some poor drafting is being corrected by some of these amendments, but it is tricky. For example, there is no explanatory statement on Amendment 96, so without delving back into legislation it is difficult to prepare a view in advance or to understand anything to do with what the Government were proposing. That is really unfortunate.

Government Amendment 148 introduces a new criminal offence that is imprisonable, and with powers of entry for inspectors, by a technical amendment in Committee. These are quite big things. Given the explanation the Minister has given, I think I probably agree with the amendment, but at this stage it is difficult to form a considered view. When this Committee gets to considering independent educational institutions, which that amendment relates to, I hope we can be reminded by the Minister that we have already had some discussion of this new criminal offence around repeated operation of unregistered educational institutions.

There is a policy question around whether two years is the right notice period for secure 16-to-19 academies, as opposed to seven years, but I think the Minister has probably given a good enough answer.

I mostly rose following what the noble Lord, Lord Baker, had to say, which in a way felt a little outside the scope of these amendments, but I can see that there is a government amendment here on terminating an academy agreement and another about essentially including single-academy trusts in termination, so I think it is in the spirit of this group for the noble Lord, Lord Baker, to have mentioned this important issue about the independence of trustees. I am sure that most of your Lordships are trustees of some charity or other, or multiple charities, and so do not need reminding that pretty much the only thing you are asked to do as a trustee, first and foremost, is to put the charitable aims first, above anything else. There are then various other good governance and financial probity things you do, but the charitable aims are everything.

As academy trustees, we now find that we have a funding agreement with government, we are subject to direction from government, and we are now subject to being able to be removed by government, all within a statutory framework; the sense that there may be any kind of independence for trustees in that context, and that they are more than agents of the state, will be very difficult to sustain.

Should it not be appropriate for the Minister to reply instantly to what the noble Lord, Lord Baker, has said, it will be important for us to see some legal advice from government that the charitable status of academy trusts will not be threatened by the further encroachment of the Secretary of State in the operation of these organisations.

[Lord Hunt of Kings Heath (Lab)]

My Lords, following on from the comments of my friend the noble Lord, Lord Baker, the difficulty seems to be that we are discussing these matters in a vacuum. It will be very interesting to hear the Minister’s response to the point that the noble Lord raised. As I said on the first day in Committee, the Minister said at Second Reading that she was launching a review to

“establish the appropriate model and options for how best to regulate the English schools system”.—[Official Report, 23/5/22; col. 740.]

The question I put to her is this: how on earth can we deal with the substantive issues raised by the noble Lord, Lord Baker, if we simply do not know how these schools will be regulated in the future? If ever there were a case for pausing a Bill, this is it.

[Lord Agnew of Oulton (Con)]

My Lords, I will make a couple of observations. First, I strongly agree with the noble Baroness, Lady Chapman, and the noble Lord, Lord Knight, about the grouping of the amendments today; it is so random as to be almost impossible to fathom or follow. I give the benefit of the doubt to whoever arranges these groups, but if the aim is to throw sand in our faces and make the job far harder then there will be trouble when we get to the voting stage.

I turn to a couple of specific amendments. On Amendment 30, my noble friend the Minister admits that this power exists already. The Academies Act has been in place for some 10 or 12 years; why are officials just working this out only now? How many other parts of the Bill have that issue? I think the answer is that a great many do.

Amendment 43 wants powers to terminate agreements with trusts, but, again, there is already the power to remove a school from a poorly performing trust on an Ofsted judgment of special measures. There have been plans and talk about extending that to what is called RRI—that is, two successive RI judgments. Why is that not being done? This does not need legislation as far as I am aware.

To sum up the points made by the noble Baroness, Lady Garden, and the noble Lord, Lord Hunt, we are discussing this in a most extraordinary vacuum. There has been no consultation on the Bill and we have had no sight of regulatory review, yet we are plunged into these incredibly technical, idiosyncratic clauses. All of us share the concern to improve children’s educational outcomes. That is why I maintain my position to seek to remove most of these clauses, so that the Government can step back and rethink.

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[Baroness Barran (Con)]

My Lords, I thank your Lordships for your contributions. I confess to being puzzled about the concerns on groupings, because those were agreed through the usual channels. Colleagues will obviously have heard the concerns expressed today, but we did go through the normal process and were not aware of some of the points raised.

[Lord Hunt of Kings Heath (Lab)]

My Lords, with the greatest respect, I say that the Government put those amendments into one group. Only movers of amendments can remove amendments from them so, as far as ordinary Members of the House of Lords are concerned, we were presented with a fait accompli about which we could do nothing.

[Baroness Barran (Con)]

As the noble Lord heard me say, this was agreed through the usual channels where we could have discussed that, had serious concerns been raised. The point has been heard loud and clear but I wanted to give the context. A number of points have been raised which I will aim to address, but I start by thanking the right reverend Prelate the Bishop of Bristol for her support on Amendment 40.

I turn to Amendments 76A and 76B tabled by the noble Lord, Lord German, and presented today by the noble Baroness, Lady Garden, in relation to Amendment 76 in my name on secure schools. Regarding Amendment 76A, the Government remain open to considering any objection to the opening of a secure school. We expect that if the question were framed in this way, however, most local concerns about opening a secure school would focus on its custodial nature. These concerns may very well be valid. However, the secure school provider is not realistically able to address issues with the fundamental character of the school. Instead of consulting on whether a secure school should open, we propose that the provider must consult on how it should work with local partners. That, we hope, should ensure that the consultation is focused on issues that the provider is empowered to address.

Connected to this, Amendment 76B, which proposes to include local government in the consultation requirement, would not result in any material change. This is because the secure school provider must consult on how it will work with local partners, and the definition of local partners that we have used already includes any person

“whose functions are functions of a public nature”,

as set out in Section 6 of the Human Rights Act 1998. The noble Baroness asked if there were any changes in relation to planning. There is clearly no intention to evade planning regulations. She also asked whether the position of the local authority had changed. Of course, more broadly, the position of local authorities will change, given that we intend to give them powers to set up multi-academy trusts, which they have not historically been able to do.

The noble Baroness, Lady Chapman, raised concerns about the potential scope of the proposed education and childcare behaviour orders, while welcoming the principle behind them. I reassure her that while these orders have been designed to be broad in scope, their use will be focused. The court can exercise discretion to impose an order only if it considers it appropriate to do so, and it would be appropriate only for the purposes of protecting children from the risk of harm arising from a defendant re-committing an offence of conducting an unregistered independent educational institution.

We intend for these orders to prohibit activities taking place only in specified settings at specified times of the week, rather than them being a sweeping power. In sentencing, the courts must do so proportionately, so it is not our intention that these orders should prohibit someone working in a setting that is already subject to another regulatory regime. Other regulatory bodies, such as the Teaching Regulation Agency, may wish to take action against those found guilty of conducting an unregistered school but these orders are not designed to interfere with that work. Their aim is to prevent the behaviour which has led to some being prosecuted for conducting an unregistered school, not to interfere with someone’s activity beyond that.

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[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?

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[Lord Knight of Weymouth (Lab)]

That is where I part company with my noble friend, in that I am relatively comfortable with others managing the schools, but with that management being accountable to local authorities and part of that accountability being managing the admissions process for all the schools in their area.

Another problem I see in a minority of cases of those schools that are their own admissions authority is that they are trying to find ways to choose pupils: rather than parents choosing schools, it is schools choosing parents. That is strongly related to accountability. Accountability for public funding and for delivery of school services is really important and I do not want to dilute that in any way, but the danger is that we end up with schools trying to ensure that a standardised pupil comes in who their whole curriculum and way of operating fits, so that they have the best chance of success.

In that respect, I commend to your Lordships a book by Todd Rose, an academic at Harvard, called The End of Average, which begins with a great story of the US Air Force when it first introduced fast jets. They kept crashing and the air force did not understand why. It worked out that the reason was that they were all designed for a standard dimension of pilot, so the controls were in slightly awkward places and the split-second timing required for fast jets meant that a lot of them crashed. That is why we now have adjustable seats in our cars, so that we can adjust to the different dimensions of people. The danger I see is that, thanks to our system of accountability, we have that problem of standardisation, with schools trying to admit pupils of standard dimensions, so to speak.

I point your Lordships to a problem I have seen in the London Borough of Lambeth, where a multi-academy trust, the board of which I chair, has a secondary school academy called City Heights. We were approached earlier in this school year about reducing the pupil allocated number for City Heights. It was not a unilateral conversation: the local authority approached all the secondary schools in the area, because the predicted demand for school places was coming down and it needed to reduce the provision of school places across the borough. All the secondary schools agreed verbally, informally, that they would reduce their PAN proportionately to accommodate that reduction. What happened when, finally, the proposals were formalised and agreed? Two of those schools, which happen to be two of the more popular schools—two academy schools—increased their PAN so that they could get more money in and continue their story of success, but at the expense of all the other schools which had played ball and tried to do the right thing with the local authority. That kind of practice needs to be sorted out, and this is an opportunity to do so.

We see some problems about fair in-year access, where pupils need to get admitted into schools in-year. We see some social selection by schools that are their own admissions authorities: things such as very subtle boundary changes, where it is hard to spot what they have done, but they happen to have cut out a social housing estate or done something else that just makes it a little easier to select the standard pupil that they are designed for. There might be elaborate religious criteria, as I mentioned. There might be talk in their prospectus of these great school trips that everyone will be expected to contribute a load of money to. That is part of the social selection that can be the practice of admissions authorities that bothers me.

This amendment would lead to fairer admissions, provide more local compatibility with the 101 varieties of admissions arrangements going on within a local authority area, particularly primary feeders, and restore confidence among parents in our admission system where that small minority of schools which abuse it and try to choose parents are undermining that confidence and we need to put it right.

This group has a number of other amendments in it; I will not attempt to speak to them all. I am supportive of my noble friend Lord Hunt’s amendment on grammar schools. I will not anticipate his comments but, when thinking about what he might say, I was reminded of a wonderful passage in an interesting, really great book written by Tim Brighouse and Mick Waters, About Our Schools—it is a huge tome of a thing but I commend it to your Lordships—about some of the early private hospitals. They had criteria around what patients they would select, in essence, to make their job easier: if you could admit only patients who were not that sick, you would be a really successful hospital. Similarly, if you admit only pupils who are already pretty bright, your job is really straightforward, but it leaves the rest of the schools with a real problem that you then have pick up with the majority.

[Lord Hunt of Kings Heath (Lab)]

My Lords, the Clause 28 stand part notice is in my name. Because it is about grammar schools, I think it is right to have it in this group, in talking about admissions policies.

I very much empathised with my noble friend Lord Knight when he spoke about the traumas of year 6 for not only the children who have to take SATs but the parents who have to choose—or attempt to choose—a secondary school for their children. It was also interesting to hear about the parallel between private hospitals choosing their patients and schools choosing their pupils. Often, the difference between health and education is that, in the main, our best hospitals are based in urban areas, with some of the poorest people, serving them. In a sense, I am not sure that education has ever quite been able to pull off the support that the health service has often given to the poorest and most deprived people, imperfect though that may be.

Clause 28 is concerned with grammar schools and academies but it has prompted me to ask the Minister a wider question: what is the Government’s general policy in relation to grammar schools? We know that, in 2016, the then Prime Minister, Theresa May, said that she wanted to allow for an expansion in grammar schools. It was in the 2017 manifesto but nothing appeared in the Queen’s Speech; more recently, the Government have said that they do not want to see an expansion in the grammar school system. However, rumours and briefings often come out saying that, actually, the Government would like to see a change in policy.

We have already seen a number of so-called satellite grammar schools open or get under way. Basically, this is a back-door way of expanding the grammar school system. Satellite schools bear the same name as the host grammar school. They are often located several miles away. Eventually, of course, it will lead to two separate schools being established. We know that the county council in Kent seems determined to expand its selective schools despite all the evidence showing that the Kent system is a poor one in terms of overall outcomes for the whole of the student population. Grammar schools in Kent do nothing more than attain the results that you would expect if you selected for high attainment—hence my noble friend Lord Knight’s comment about schools choosing their pupils.

As Comprehensive Future has stated:

“What is there to stop any grammar school from creating a whole chain of satellites stretching from Northumberland to Land’s End?”


This is not an academic argument because there have been suggestions that the Bill could be amended by Conservative MPs when it goes to the Commons. The Evening Standard has reported that the Government refused to rule out lifting the current ban on new grammar schools, while the Telegraph has reported that the Government are open to expanding academic selection. Indeed, Chris Philp MP was quoted as referring to his plans to amend the Schools Bill to support new grammars. Can the Minister clarify the Government’s exact position?

I am afraid that I am old enough to have experienced the wretched old grammar/secondary modern system, and the 11-plus, which condemned so many children to be classified as failures at the age of 11 and to be sent to schools with fewer resources and less ambition. That is why the move to a comprehensive system was so popular. It is interesting that the movement started in some of the shire counties. I lived in Oxford, and Oxfordshire and Leicestershire were determined to get rid of grammar schools in the 1950s and 1960s because they did not want all their children to be branded as failures at the age of 11. In 1953 and 1957, Leicestershire started to experiment with comprehensive education, expanding it throughout the whole county in 1969. Oxfordshire started in 1955 and 1957, subsequently expanding throughout the whole county as well.

Why did parents support this? It is very simple. Those arguing for grammar schools present only the image of children passing the 11-plus and going to grammar schools, and their subsequent achievements. They do not refer to the large number of children—around 70% in Kent—who are told aged 11 that they are failures and then attend underresourced secondary moderns. There is plenty of research to show that in those areas with a grammar school system, achievement is lower. Look no further than Kent and Buckinghamshire. Grammar school systems continually and consistently undermine educational achievement. According to the DfE, in 2019, the GCSE pass rate was 11 points below the national average in Kent and five points below average in Buckinghamshire.

Claims that grammar schools give a foot up the ladder for poorer children have, again, been debunked comprehensively. Research by the Institute for Fiscal Studies shows that in the remaining grammar schools, the percentage of pupils from poor backgrounds is lower than ever: 2.7% are entitled to free meals, against 16% nationally. Once the pupil intake of grammar schools is taken into account, based on factors such as chronic poverty, ethnicity, home language, special educational needs and age in year group, Durham University analysis shows that grammar schools are no more or less effective than other schools.

Finally, the poorest children in Kent and Medway have a less than 10% chance of getting into grammar schools, while for children in the very richest neighbourhoods, it is over 50%—schools choosing their own pupils. I want the Minister to say that there is no intention of changing the policy with any amendments that any Conservative MP might seek to move in the Commons, although whether the Bill reaches the Commons is a question that we are all interested in. Assuming that it does eventually reach the Commons, I hope that the Government will say today that they will have no truck with that.

[Lord Shipley (LD)]

My Lords, my name is attached to Amendments 78 and, with my noble friend Lord Storey, Amendment 162.

Amendment 78 deals with the issue that we were discussing earlier about the provision of school places by academies. It says that the Secretary of State must, within six months of the Act being passed, make regulations which provide local authorities in England with the power to direct academies within their area to admit students or expand school places. An example of why that could be important would be a new housing development of some significance which alters the balance of pupil numbers in a particular geographical area. Broadly speaking, our amendment is very similar to that of the noble Lord, Lord Knight. He uses “guidance”; we use “direction”. It is also similar to Amendment 160, which will be spoken to shortly.

The problem is simply that councils have a statutory duty to ensure there is a local school place for every child who needs one, but they currently do not have the power to direct academy trusts to expand school places or to admit pupils. This amendment would introduce a new backstop power for local authorities to direct trusts to admit children as a safety net.