Schools Bill [HL]

Lord Judge Excerpts

Committee stage
Wednesday 8th June 2022 Lords Chamber

I hope the Minister can agree, particularly in the light of the references made by the noble Baroness, Lady Meacher, to the report by the Delegated Powers Committee, that Clause 1 and Clause 3 are singularly inappropriate and should be removed from the Bill. I know that she cannot agree that today, but I would like to have some time reflecting and to come back on Report in the autumn.

[Lord Judge (CB)]

My Lords, first, I owe an apology to the Committee because I did not speak at Second Reading as I had other commitments here. I hope the Committee will forgive me. I will therefore be brief.

I have never yet had the power, standing in this Chamber, to decide a dispute between the noble Lord, Lord Hunt of Kings Heath, and the noble Viscount, Lord Eccles, both of whom were trying to predict what I would think about this Bill. As is the way in court, the party who is about to lose has a compliment paid to him. I congratulate the noble Lord, Lord Hunt of Kings Heath, on his wonderful political naivety, his innocence and his willingness to take everything at face value, but the noble Viscount, Lord Eccles, was right that it does not surprise me at all that we have a Bill like this before us, and that it came as our first piece of legislation, because it is symptomatic of the habitual way in which the Executive produce Bills. I totally support the view that Clauses 1 and 3 should not stand part of the Bill. If we believe in the sovereignty of Parliament, this Bill is constitutionally flawed.

I will not quote from the various reports, but just ask noble Lords to look at the heading of Clause 1: “Academy Standards”. There is not a word in the whole of that clause that is about standards. The real heading of the clause should be “Executive Authority Over Education”. That is what it is. It contains a list of examples of powers that may or may not be exercised and so on and so forth, but it is not a limitation. It does not say, “Once we have got to all 18—or is it 19 or 20?—of them, that is it.” No, it states that they are

“examples of matters about which standards may be set”.

That is why Clause 1 should fail: it simply does not say what is on the package. It is a complete assumption of authority by the Executive. As if that is not enough, having assumed powers they then take on a Henry VIII power. Clause 3 starts off with “by regulations”. Heavens, we are still at the beginning of the Bill and we get to a Henry VIII clause in Clause 3. Noble Lords all know what a Henry VIII clause is; they have all heard me rabbit on about it. At this time of the evening I will not start again, but I could give your Lordships a wonderfully exciting time on how difficult Henry VIII found it to get his Bill through, and how in the end that Parliament, defying Henry VIII, did not give him the power to overrule statute. But here—good old modern Government and modern Executive: do what you like.

I just want to add a footnote about Clause 4. As the noble Lord, Lord Hodgson, has just arrived in his place—he cannot speak now, poor chap—perhaps the secondary legislation committee may have a word or two to say about Clause 4 and the issuing of guidance based on the regulations the Secretary of State has created in accordance with the powers in Clause 3. We will wait.

I would like to take longer, but for the time being these clauses should not stand part of the Bill. We should not overlook—I am considering the point made by the noble Lord, Lord Hunt of Kings Heath, quoting me—that the Bill has started in this House. It cannot be said that any of these proposals has already had the assent of the other place.

[Baroness Brinton (LD)]

My Lords, I intervene briefly and echo the support for all those who have spoken about the problems with the powers of the Secretary of State. I come back to a point made slightly earlier about the lack of detail in the Bill, which does not provide a framework for what should follow in regulation. Some of us who have followed the health brief throughout the Covid era know this all too well.

I will just give noble Lords one example of where things went wrong. Nothing gave any guidance to the Health and Safety Executive about how its responsibilities would be carried out. There were Covid enforcement powers for local authorities, Covid enforcement rules for the police and everything else, but whenever anyone went to the HSE to ask it what they should be doing, there was no role for it at all. In fact, on at least two occasions Ministers brought back regulations because they were not working in the field. One might say that in a pandemic mistakes will happen, but because there had not been a framework in the Coronavirus Act it was not clear what the Government were trying to achieve by those objectives.

The worry is that Bills keep coming to your Lordships’ House with so little detail in them—this may be the most recent and most egregious example—that it will be impossible to safeguard everything, and even for this House to do its job should we get to scrutinise them properly, because we just do not have the framework that the front of the Bill sets out for us.

Schools Bill [HL]

Lord Judge Excerpts

Report stage & Lords Hansard - Part 1
Tuesday 12th July 2022 Lords Chamber

[Baroness Barran (Con)]

If I may, I would like to respond to my noble friend’s other points. It is extremely important, given that our debate is a matter of public record in Hansard, that assertions that are made in the House are accurate. With the greatest respect to my noble friend, I am very happy to share with him—and it is on GOV. UK—the list of people who are on the expert panel. I am very happy to talk about—and will be in a few moments, I hope—the extremely extensive engagement that we plan for over the summer. I do not think it is helpful to assert things that are not accurate about how the Government are approaching this Bill in continuing to get it to a good place. I will take any time with any Member of the House to make sure that there is no confusion about how we are approaching this.

On the regulation of schools, these standards are about the regulation of trusts; they are trust standards, not school standards.

[Lord Judge (CB)]

I want us to pocket the clauses that the Government are going to give way on. Let us get rid of clauses that are unacceptable.

We are all rushing around trying to find a solution. I draw the Minister’s attention to paragraph 8.132 in the Companion, which I would like everyone sitting here today to consider. The noble Lord, Lord Grocott, is right: the present arrangement means that there would be no Report stage on the new clauses, and there would be no Committee stage on the new clauses. There will be a Committee process, which is quite different, and which will culminate in the ping-pong arrangements. The Companion states:

“Other bills may, on motion (which is debatable and of which notice is required) moved at any time between committee and third reading, be recommitted to a Committee of the whole House or Grand Committee in their entirety, or in respect of certain clauses or schedules. This course is adopted when it is desirable to give further detailed consideration to the bill or certain parts of it without the constraints on speaking which apply on report and third reading; for instance: when substantial amendments are tabled too late in the committee stage to enable them to be properly considered; where there is extensive redrafting; or where amendments are tabled at a later stage on subjects which have not been considered in committee.”


That seems to me to cover all the new clauses that may be put into the Bill as and when it gets to the Commons—if it gets to the Commons. We must not get to Third Reading; we must make any application, or move any Motion, before Third Reading. I would love to be an expert in procedure but I am not, but I think that may be an answer to the problem that is obviously vexing a number of Members of the House. There could be a recommitment of the amendments and we would then go to Committee stage.

[Lord Cormack (Con)]

I am grateful to the noble and learned Lord. In view of the extraordinary and frankly unprecedented mess we are in with this Bill, would it not be sensible to adjourn the House so that there can be conversations between various key people? It might indeed be far better, neater and tidier—and, in the long run, far speedier—if the Bill were abandoned and a new one brought in when we have a new, effective Government in power.

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[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the amendment proposed is to insert the words on the Marshalled List at Clause 1 on page 2 at the end of line 18. If I am wrong, I apologise.

[Lord Judge (CB)]

My Lords, I will speak in a moment to Amendments 4, 7 and 9, but can I go back to the discussion that happened a few moments ago and the concern of the noble Lord, Lord Grocott? I will again read paragraph 8.132 of the Companion: “Other bills”,

so one that has not been referred to a Select Committee or Joint Committee,

“may, on motion (which is debatable and of which notice is required)”—

that means assuming the usual channels cannot resolve the problem in a way that is satisfactory to the House—be

“moved at any time between committee and third reading”.

We are still on Report and will be at the end of today, so we will not have reached Third Reading. Although I do not claim to be an expert, I think it is open to the House to consider the remedy available at paragraph 8.132 of the Companion. That is what I would like the House to do and what I expect the usual channels will do. I should assert that, as Convenor of the Cross Benches, I am not a usual channel for these purposes because I do not have a party.

Now to the Bill. Of course, we are grateful to the Minister. I feel very concerned that somehow people may think the anxiety of the House is a reflection on her. I can do nothing except on behalf of myself thank her for the way in which she has listened. I have an awful suspicion—and she cannot confirm or deny this—that, if she had her way when she was in the department, we would not have ended up with the Bill in this absurd situation.

The provision in Clauses 1, 3 and 4 is extraordinary. I will go through what I said again when we were speaking about this last. The two words “Academy standards” are a clear misrepresentation of what Clause 1 is about. It is simply a skeleton provision from which the Secretary of State can pick whichever particular provisions he wishes to invent for himself; he is not bound by any of them, and he or she can write them for himself or herself.

Clause 3 is Henry VIII. The House has listened to me on Henry VIII a number of times so I will not go on about it, but I hope noble Lords have all noticed that the Bill has a particular quality, in that it has two Henry VIII clauses: Clause 3 and Clause 66. Removing Clause 3 simply removes something that is completely unnecessary. Clause 66 will no doubt continue because the departmental computer will just produce one at some stage in the Bill. I have never before come across two Henry VIII clauses in the same legislation—so we have Henry XVI, and the Bill has a particular record apart from all its other flaws.

It also has a provision in Clause 4 which is a shameful, pernicious new way for central government to obtain power: the issuing of guidance. When the Government and department of the day issue guidance, those to whom it is sent answer to it. In the Bill, there is a provision that enables the Secretary of State to issue a compliance direction anyway. So we have a new form of acquisition of central power, ultimately in No. 10 Downing Street, which we have shamed the country with by passing and enacting the Elections Act. It is exactly the same provision.

Any one of those three would be great from the point of view of central government, but we have all three together. It is a rather poisonous cocktail from all our points of view. It is like supping Irn-Bru, only on stilts. It is the most amazing combination of powers. That is why these clauses should fail.

I am concerned, as has been expressed by others, but not about the way in which the Conservative Party is going to sort itself out. I am concerned about that for the sake of the nation, but not for the sake of the Bill, because, as has been arranged so far, when the clauses go back in whatever form they are amended to the Commons—there will be new clauses—there will be no Second Reading or Committee here. We must therefore look at the provision of paragraph 8.132.

Something else worries me even more. The Bill started here, and this Minister was sitting here and able to hear observations from all sides of the House about the absurdity and the rather alarming features that discolour Clauses 1, 3 and 4. We have got where we have got to, and these amendments will pass in due course. But the chilling feature is that, if the Bill had happened to start in the House of Commons, I have no reasonable doubt that those provisions would have come to us as drafted, after peremptory debate. The Minister would then have had no option but to say, “Well, it’s gone through the Commons. What are you doing interfering with its wishes?” Of course, we would have gone on, but there comes a time when the Commons has to win.

It is pure luck that the power grab in these clauses has come before this House and that we have had this Minister here to lead her department to the obvious and sensible conclusion. But our present constitutional arrangements mean that only the coincidence that the Bill happened to start here gives us relief. If it had started in the other place, I have not the slightest doubt that this is the Bill that we would have had to consider. I find that chilling, because we all know that the opportunities for this House to change legislation that passed through the House of Commons are very limited. That is the state that our constitution has got to in 2022, and it is the most alarming feature of these clauses.

[Lord Mackay of Clashfern (Con)]

My Lords, it is time that we made some progress. The noble Lord, Lord Knight, proposed that the Bill should go forward on Report, and the Labour Chief Whip agreed. But we are getting into doing that without having passed a Motion, so I would like it to be made clear that we will now consider the Bill on Report and deal with whatever difficulties there are as that goes on.

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Moved by

[Lord Judge]

4: Leave out Clause 1

[Lord Judge (CB)]

I beg to move Amendment 4, and I think the House might be quite pleased to agree to it.

Amendment 4 agreed.

--- Later in debate ---

Moved by

[Lord Judge]

7: Leave out Clause 3

--- Later in debate ---

Moved by

[Lord Judge]

9: Leave out Clause 4

Schools Bill [HL]

Lord Judge Excerpts

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

[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.

[Lord Grocott (Lab)]

My Lords, sitting where I am, I have repeatedly felt genuinely sorry for the Minister, who has done so much to try to improve the Bill or respond to concerns that have been expressed. But she must have realised by now that the Bill is beyond repair. If it does re-emerge, it will do so in such a different form from the one that started out that it will be tantamount to being a new Bill. In our attempts to improve it, I am reminded of the no doubt apocryphal British Rail announcement that the Wednesday afternoon train to Crewe would now run on Thursday mornings and would not stop at Crewe. That is the situation that this Bill is in. I think that the Minister can honestly and with real integrity report back to her political colleagues in the Commons that we really need to stop trying to amend a Bill that has gone way beyond that stage and that the last rites need to be performed and a new Bill brought before the House.