Schools Bill [HL]

Lord Hunt of Kings Heath Excerpts

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.

[Lord Judge (CB)]

My Lords, we understood that Third Reading was going to happen this week. I drafted a Notice of Motion for the House to decide whether Third Reading should be heard at all. I showed the Notice of Motion to the Chief Whip, he saw it and it was perfectly plain that, if the House agrees, we should not take Third Reading at all until we know exactly what is in the Bill. I happen to agree with the noble Lords, Lord Baker and Lord Hunt: whether or not we leave the Third Reading in Forthcoming Business, the House will also have to consider a Notice of Motion that we should not consider Third Reading at all.

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Moved by

[Lord Hunt of Kings Heath]

80: Clause 49, page 46, line 5, after "may" insert "by regulations"
Member's explanatory statement
This amendment, together with the amendment in Clause 49, page 46, line 7, is aimed at ensuring that guidance given to local authorities in relation to school attendance under sections 436B and 436G of the Education Act 1996 must be subject to the affirmative regulation making process.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I also have Amendments 81 and 83 in this group. I am very pleased that the noble Lord, Lucas, is supporting Amendment 80 and my noble friend Lord Knight is supporting Amendments 80, 81 and 83. I have just been in the Procurement Bill debate in Grand Committee, so if I repeat points that have already been made then I apologise to noble Lords. These amendments are concerned with Part 3, the provisions in relation to school attendance and the duty to register children not in school. The Minister will know of the concerns; in fact she has just reflected in her wind-up speech on some of those that have been expressed by noble Lords.

My particular interest is the special needs of children being educated at home with special educational needs and mental health issues. It is fair to say that many parents already find that the current attendance policy and enforcement system can have a negative impact on mental health and well-being. They are concerned about the ramifications of the Bill: the register, the live attendance tracker, the tighter lacing of attendance enforcement and the fast track to fines and prosecutions.

It is clear that Ministers have listened to the debate, and I am very grateful for the amendments that have been tabled, which are aimed at providing assurance to families over the information to be prescribed, its intended use and what can be published, and to give Parliament increased scrutiny of the use of delegated powers concerning those matters. My three amendments encourage the Government to go a little further in terms of reassurance.

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With that, I ask that the noble Lord, Lord Hunt, withdraw his amendment and that other noble Lords do not to move theirs.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am very grateful to the noble Baroness. The noble Lord, Lord Lucas, has been in this House even longer than I have, and it is amazing what we have learned today about what happens to the date on a Bill—though 2023 maybe optimistic, who knows?

The noble Baroness has reflected on the importance of the guidance to be given to local authorities to approach this new role in a sensitive way. I support the general principles here. Whatever our views, that brings us together, because it will be essential that local authorities do the job properly, and they need support to do so. The statutory guidance and consultation she referred to are very welcome indeed.

Then noble Baroness felt that my suggestion that the guidance should be brought in through a regulation would be rigid. However, in our debates, today and previously, we have recognised the importance of this guidance. It is in some ways as important as what is set out in statute. I would have thought at least on the first occasion, when the guidance is brought in, it should have the benefit of parliamentary scrutiny. I think it is something we ought to come back to on Report. If she accepted my code of practice, that would be a way of getting the flexibility that I understand she needs, alongside statutory provisions. It has been a very useful and constructive debate,

[Baroness Penn (Con)]

Just briefly, I should make it clear to the noble Lord that we are at Report stage and I do not think we will be returning with amendments from the Government at Third Reading.

[Lord Hunt of Kings Heath (Lab)]

The noble Baroness almost tempts me to push this to a vote, but I would not be allowed to. I have come straight from Committee to Report—I apologise. I beg leave to withdraw my amendment.

Amendment 80 withdrawn.

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[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as a vice-president of the Local Government Association and it is a pleasure to follow the noble Lord, Lord Lucas. He talked about hair-trigger actions for the school attendance order process. He is right that we need clarity and common sense, an active relationship with parents and a way of holding local authorities to account where things have gone wrong.

Amendments 89, 95 and 96 in this group are in my name. Amendments 89 and 96 echo my amendment in the first group, which my noble friend Lord Storey spoke to. Many Peers have reported specific cases where, despite the Minister saying that this is meant to be about schools and local authorities working together with parents, that is just not happening in practice. Parents are definitely made to feel that they are always in the wrong, so I thank my noble friends Lord Storey and Lord Addington, and the noble Lord, Lord Lucas, and others, for their comments in that group that despite some schools and LAs having very good practice, unfortunately there are some which do not.

Noble Lords know that I have focused on pupils with medical conditions because some of the most concerning incidents relate to schools and local authorities making decisions that fly in the face of the pupil’s doctor. It should not be possible for education people to countermand expert advice. There are other categories, too: a looked-after child, a young carer or even a young offender may all have—in the eyes of the expert, such as their social worker or youth offending officer—a good reason why they should not be in school. Schools should not be able to countermand that.

Other noble Lords have given examples of some of that poor practice, and I cite one example I have heard about: of a paediatric oncology specialist telling a school with cases of an infectious disease—that could be Covid but could also be measles—that a pupil with cancer on strong chemotherapy should not be in school as they were severely immunosuppressed and that if this pupil caught the infectious disease, there was a high risk that it would be fatal. At present, the guidance says that there must be a partnership between parents, schools and health professionals in determining the best route forward. Unfortunately, the school can still choose to ignore that advice.

I thank the Minister for saying on the first day of Report that a headteacher disregarding specific advice would be acting unreasonably and would therefore be in breach of their duty. The problem is that no one knows that—certainly not headteachers or health professionals, and especially not parents or the pupils themselves. I am afraid that the same is true for some local authorities too, which is why these amendments are laid, to ensure that a poor process that starts in a school does not just continue on a conveyor belt. I repeat the point I made at earlier stages of the Bill: the current arrangements do not work. If we especially want to protect children with medical conditions and ensure that they have the same experience as other children, frankly, the arrangements need to be more explicit.

Amendment 95 is a probing amendment about parents who have repeatedly failed to comply with school attendance orders and not paid fines, and who can now—under the Bill—be sentenced to a prison term of up to 51 weeks. The previous maximum level was three months; that is a very large difference and, if used, is likely to lead to the local authority having to provide foster carers or, even more drastically, putting the children in care if a parent or both parents were imprisoned for 51 weeks. Surely, that is the exact opposite of what should be happening. The whole point of this part of the Bill is to encourage children into the stability of education and learning, in which their parents should have a role, and if things have gone wrong then this is a step too far.

I am grateful to the Minister for the meeting last week at which, in light of the debate we had in Committee, we discussed this. She also said in a letter that there was no intention ever to use 51 weeks and that it was a technical provision, solely because that would be the maximum sentence a magistrates’ court can give. This seems extremely strange to me, and slightly worrying. It is wonderful that the current Government say that they would never use it, but what of a future Government? I look forward to hearing the Minister confirm at the Dispatch Box exactly what she said in her letter, so that, should the 51-week term be used, the ministerial intentions when the Bill went through your Lordships’ House could be prayed in aid.

Above all, we need clarity. We need to ensure that this part of the Bill does not act solely as a form of prosecution. Surely, all the good intentions regarding parents who wish to educate their children at home should be understood. Schools and local authorities should really understand when there are genuine reasons why a child may not be in school.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am going to speak to Amendment 97ZA, in the name of the noble Baroness, Lady Hollins. Unfortunately, because of today’s conditions, she is not able to travel to your Lordships’ House.

If the noble Baroness were here, I think she would first say that a lot of progress has been made in how we support those with learning disabilities and autistic people in the last parliamentary Session. The Health and Care Act saw the introduction of mandatory training for all health and social care staff to ensure they are better able to work with people who can otherwise struggle to find a voice within the complex system designed to support them. She would also refer to the Down Syndrome Act, which acknowledges the gaps between the intent of existing legislation such as the Equality Act and the Care Act and its implementation in practice. That is a rationale which underpins the amendment I have signed.

We know that many autistic people and those with learning disabilities can have complex needs across the breadth of the public sector and experience so many barriers to accessing support. What happens in childhood can determine their lifelong trajectory, whether this be in a positive or negative way. For example, for some children and young people this may be the beginning of a downward spiral of school exclusions and admissions to mental health facilities. That is how the journey to long-term segregation in an ATU begins—journeys that the Department of Health and Social Care’s oversight panel chaired by the noble Baroness, Lady Hollins, is currently trying to reverse.

Clause 54, “School attendance policies”, gives little regard to the way that neurodiversity and chronic health conditions can affect a young person’s development and how their educational needs may differ from their peers. This is important because people with learning disabilities and autistic people have higher rates of physical health and mental health comorbidities. This is particularly so for autistic children in mainstream schools.

I am very grateful that the noble Baroness, Lady Barran, wrote to Peers following Second Reading to try to address the concerns of the noble Baroness, Lady McIntosh of Hudnall, that the attendance clauses in the Bill would penalise pupils with SEND and those with autism. In the letter she said:

“We are clear that schools should authorise absence due to both physical and mental illness. Schools should only request parents to provide medical evidence to support absence where they have genuine and reasonable doubt about the authenticity of the illness. We are also clear that schools pressuring a parent to remove their child from the school is a form of off-rolling, which is never acceptable.”


That was very welcome indeed, but as she knows, the words of Ministers do not always turn out to be adopted in practice everywhere throughout the school system.

The importance of this is in the statistics. In 2022, her department stated that persistent absence—defined as missing over 10% of available sessions—involved 12.1% of students; hence the legitimate concern about this, which I understand. However, the rate is nearly three times higher among autistic pupils, at over 30%. Exclusions of autistic children have more than doubled from 2,282 in 2010 to over 5,000 in 2020. There is a big question here: why is it so much higher?

In 2020, Totsika et al published what I think is the only peer-reviewed study into school non-attendance for autistic students in the UK. They found that non-attendance occurred in 43% of their sample of just under 500 students and that autistic children miss 22% of school. Some 32% of absences were attributable to illness and medical appointments, and:

“Truancy was almost non-existent.”


This study found that going to a mainstream school, as opposed to a specialist school, increased the chances of missing school by nearly 100%.

Autistic people experience higher rates of physical and mental health difficulties compared to their neurotypical peers. Anxiety is a predictor of school non-attendance for all children, but we also know that anxiety is more common in autistic children, with approximately 40% having a clinical diagnosis of an anxiety disorder and another 40% experiencing subclinical anxiety symptoms.

The DfE has guidelines around managing non-attendance and support for students with SEND or medical conditions. This includes a duty to ensure suitable education, including alternative provisions or reasonable adjustments and that the local council should

“make sure your child is not without access to education for more than 15 school days”.

However, we know from experience with the Autism Act 2009 and the Down Syndrome Act that, just because it is written in guidance, it does not mean it happens in practice.

The noble Baroness, Lady Hollins, shared with me the example of one parent who wrote:

“My local authority has not accepted medical evidence that my daughter can’t attend school due to severe anxiety... Now we won’t get tuition help and all her further absences will be unauthorised!”


This is despite supporting evidence by a chartered psychologist. She goes on to say:

“Imagine forcing someone with a physical illness to come to school when a doctor says they can’t?”


Another parent has written to us saying that

“Fining parents for school absence due to school-based anxiety is … counterproductive”.


The amendment tabled by the noble Baroness, Lady Hollins, is based not on a few cases but many. It seeks to confirm the Government’s commitment to ensuring that SEND students are not disproportionately penalised by the Bill. There is a duty to implement existing guidance in day-to-day practice. I hope the Government will be sympathetic to the intent of the noble Baroness’s amendment.

[Lord Shipley (LD)]

My Lords, I would like to speak briefly to Amendment 91, in my name in this group, which aims to clarify the provisions on school attendance orders to ensure that they should only be issued when, in the opinion of the local authority, this course of action is in the best interest of the child in addition to being expedient.

The Minister may remember that we debated this in Committee. The Bill says clearly that school attendance orders can be issued where “it is expedient” to do so. I had an amendment which said that it should be in the best interests of the child, not that it could be “expedient” to issue a school attendance order. In reply, the Minister said that the word “expedient” was in the 1996 Act anyway and that the test would be the same.

For avoidance of doubt on this matter and to have a clear record, it seems that the best way to proceed is to take my amendment, in which I have not deleted the word “expedient” but have added that it is

“in the best interest of the child”

to have a school attendance order. The benefit would be much greater clarity, and I hope the Minister can agree to my suggestion.

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This is not just about safeguarding children in our schools, important as that is. Surely this is about giving children an opportunity to flourish; to be the best they can be and have a sense of belonging. This amendment gives us that opportunity and the framework for that to happen.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is a great pleasure to follow the noble Lord in what I thought was a very moving and profound contribution. My Amendment 118M takes us back to the role of regional schools commissioners, which we touched on in Committee. Commissioners have enormous power but they are civil servants and act on behalf of the Secretary of State, who remains accountable for their decisions. Each regional schools commissioner is supported by an advisory board, and they have a wide range of responsibilities including intervening in academies that Ofsted has judged inadequate, intervening in academies where government is inadequate, and deciding on applications from local authority maintained schools to convert to academy status.

In the schools White Paper earlier in the year, the Government stated that they would be changing the name of the regional schools commissioners to regional directors. A new regions group has been established within the noble Baroness’s department, which is bringing together functions currently distributed across the department and the Education and Skills Funding Agency. In Committee my noble friend Lord Knight raised a question about regional directors, as part of his thinking on what an all-academy schools system might look like in practice, particularly relating to the accountability of multi-academy trusts. He referred to the fact that many think academies insufficiently accountable. He felt that the advisory boards that regional schools commissioners have might be one way of strengthening accountability, particularly if they had a majority of local authority people on those advisory boards. The Minister was not very encouraging, I have to say, at that point.

I want to come back to this, because it seems to me that the review the Minister is now undertaking must take account of the relationship between academies, multi-academy trusts and regional directors. The direction of travel is that, by 2030, all schools will be academies. In essence, the Secretary of State is taking direct responsibility for each school in the English school system. In reality, the regional directors will take on that responsibility on behalf of the Secretary of State. Those regional directors are nominally civil servants, although they are not really civil servants in the way we think of them because they are external appointments. The sort of people who are appointed are not career civil servants; they are people who have come mainly from outside the system, as far as I understand it, so to call them civil servants is misleading in many ways, because it suggests they are functionaries directly accountable to the Secretary of State. The reality is that they take on huge powers. My argument is that they need to be more accountable to the system. I think the Minister should spell out in more detail the role of these regional directors. Recent research on Twitter—this is where we get information about them—shows that five of them have announced themselves on Twitter setting out their responsibilities. Each of them says that they are now responsible for children’s social care. I would be grateful if the Minister could confirm if that is so or not. Does it mean, for instance, that these regional directors will be taking a lead on the regional adoption agencies? If there is an inadequate judgment under the Ofsted inspection of local authority children’s services framework, what is their role there? Do they have intervention powers?

What are the transitional arrangements between the regional schools commissioners and the regional directors? Will the regional directors be responsible for maintained schools that are not going through the academisation process as yet? I agree with my noble friend Lord Knight: there should be much greater transparency about what regional directors do, with the role of the advisory boards beefed up. There is actually a strong case for them becoming statutory agencies in the end, given that so much power is going to be given to them.

My substantive question to the Minister is: given the review she is now undertaking, will she assure me that the relationship of the regional directors and their accountability will be part of that review? She may argue that this has all been settled in the White Paper following Sir David Bell’s review but, given the scale of the change in many schools, which are going to be forced to become academies, I do not think that is the answer. We need to see much more accountability about how the system is going to operate. I hope that the Minister will be able to respond on that.

[Lord Storey (LD)]

My Lords, before speaking to the amendments, I want to quickly say how much I agree with Amendment 101 on British values from the noble and right reverend Lord, Lord Harries, and Amendment 105 from the noble Lord, Lord Sandhurst. I do not see it as an issue of culture wars or whatever—parents should see the material that their children are being taught. I am quite surprised that we cannot do that. When we had parents’ evenings, the textbooks and the material that we were using were freely available for parents to look at. It was quite an important aspect of those meetings, as well as children’s work being on display. I hope the Minister can answer this issue about copyright because that seems to be a red herring.

On Amendment 118H, the noble Baroness, Lady Chapman, is absolutely right: there should be a review of diversity in the curriculum. When you ask about black studies or black history in school, you get a list and you might find a black author or an Asian poet on it, but there is no guarantee that that is actually taught in schools; invariably, it is not. I want that audit on diversity to be carried out so that we know exactly how our curriculum should be developed.

I will come to the amendment in the name of the noble Lord, Lord Woolley, at the end, if I may.

I have a slight reservation with the amendment in the name of the noble Baroness, Lady Chapman. We do not have a national curriculum: it is not taught in Wales, Scotland or Northern Ireland, so it is not national. It is not taught in academies or free schools. It is taught only in maintained schools, so it is not a national curriculum.

I like the fact that academies and free schools have the freedom to devise their curriculum and I wish that freedom were given to maintained schools as well so that schools can devise their curriculum to suit their particular circumstances or issues. I gave an example to the Minister only today: Liverpool was the centre of the slave trade and I know that in academies in Liverpool they will do a unit on the slave trade, but it is not part of the maintained school curriculum. Maintained schools should be free to develop their curriculum.

The noble Baroness’s amendment lists the things that should definitely be part of this mandatory curriculum. They are probably the right ones. Financial management should be taught. Certainly, some personal, social and health education issues should be taught. I have a Private Member’s Bill on water safety, because I believe passionately that that should be taught in schools. Yes, there are things that should be taught, but let us not be prescriptive now. What we need is a review of our curriculum. It has not been reviewed for 10 years and we need to do that—for all the reasons we have heard from the noble Lord, Lord Woolley, and the noble Baroness, Lady Chapman. So this is an important amendment but it is perhaps too prescriptive.