Report (2nd Day)
Relevant documents: 2nd and 8th Reports from the Delegated Powers Committee
Moved by
Baroness Barran Portrait Baroness Barran
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That the Bill be now further considered on Report.

Baroness Barran Portrait The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
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My Lords, with the leave of the House, I will begin with a brief note on scheduling. I know that there were concerns about progressing with Third Reading before the Summer Recess. The Government have listened to the concerns expressed, including on the first day on Report, and have agreed through the usual channels that a quick Third Reading is no longer desirable. As announced in the new version of Forthcoming Business, Third Reading has moved to Wednesday 14 September. The short delay does not affect the wider passage of the Bill. I hope this provides reassurance to your Lordships.

Lord Baker of Dorking Portrait Lord Baker of Dorking (Con)
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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 Portrait Lord Hunt of Kings Heath (Lab)
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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 Portrait Lord Judge (CB)
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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 Portrait Lord Grocott (Lab)
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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.

Lord Addington Portrait Lord Addington (LD)
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My Lords, the Minister has done what in rugby they say happens to good players: they catch the bad ball. You catch the attention of the entire team and you get flattened, but the good players get up. I hope the Minister will be able to get up and report back that—and I have made this point to her many times—unless we have a realistic amount of time and structure within which to discuss the changes, we are not doing our job. It is as simple as that.

I would be slightly more flexible about having a whole new Committee stage, but only one day has been suggested. I asked the Minister at the time whether that meant one day of business that might be extended to three or four—we might have a better reading if we had that—but a process that would be effectively guillotined, or at least very condensed, fills me with nothing but dread. We have to make sure that we have enough time to discuss the changes, and if that meant another process coming through, I would be quite flexible and would encourage my noble friends to do the same. But one day of Committee, with 12, 20 or who knows how many more new clauses and a structure that we have not heard of yet—come on, that is not on.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, the only thing that stops me wholeheartedly agreeing with everything that previous speakers have said is the thought that we would have to go through this again.

Viscount Stansgate Portrait Viscount Stansgate (Lab)
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My Lords, that is one of the reasons why I support what has been said by the noble Lord, Lord Baker, and the noble and learned Lord, Lord Judge. This is not just about a particular Bill; it is about the way we do business. As I am just about to finish my first parliamentary year in this House, and, as other noble Lords have said, a situation of this kind has not arisen before, I would not like to think that this would set a precedent in any way for the way in which the House considers its business in future. When it comes to what I might call negotiating leverage, one day is a derisory offer to the House; with no disrespect to the Minister, that is not good enough. There is great merit in not agreeing to allow a date for Third Reading to be set at this stage.

Lord Kennedy of Southwark Portrait Lord Kennedy of Southwark (Lab Co-op)
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My Lords, it is quite clear that the Bill has been badly received across the whole House. Whole chunks of it have been taken out and it is in a very poor state, and it is clear that it should not have come here at all because it had not been put together properly. I am sure the Minister has heard that; it is not the first time that these views have been expressed. We will have a new Government in September, and then it will be up to the Prime Minister. This Bill may disappear completely—we do not know.

I have been part of the usual channels now for 13 months, and I hope still to be here in September—in one or other part of the usual channels. I will spend my summer working with colleagues in other parts of the House to ensure that the points raised by colleagues are fully understood by the Government, so that we can work together, bring things back and have a system that everyone is happy with. The Minister has heard how dissatisfied the House is. I am sorry, but I think that is important.

One thing I have learned as Opposition Chief Whip is that the forthcoming business can change from day to day, never mind what is going to happen in September. Particularly in March and April, the forthcoming business was changing literally every day. The fact that it is listed for September does not necessarily mean that it will happen then. We do not know. We will have those discussions then.

As the noble and learned Lord, Lord Judge, has mentioned, we have the other protection of his Motion. I am sure that if Third Reading is tabled and he is unhappy with it, his Motion will be tabled for the House to consider. There are many barriers in place to make sure that the House can make its views known if it is unhappy. I am sure the Minister has heard how unhappy the House is.

Baroness Barran Portrait Baroness Barran (Con)
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The Minister has heard loud and clear. I suppose I would say a couple of things—but very briefly, because it is important that we get on and hear your Lordships’ thoughts on the rest of the Bill.

I say to the noble Lord, Lord, Grocott that the Bill is not beyond repair. There are significant parts of it—relating to the children not in school register and illegal schools—that are definitely not beyond repair. I also point the noble Lord to the large section of the Bill where there have been no amendments at all.

My request to your Lordships is that when we come to look at the new clauses, noble Lords leave these debates behind and look at them objectively, fairly and with all the experience and critical judgment that they can bring to them. I hope very much that, when that happens, the Bill can see a speedy passage.

Motion agreed.
Lord Geddes Portrait The Deputy Speaker (Lord Geddes) (Con)
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My Lords, before calling the first group, I should say that the noble Baroness, Lady Brinton, is taking part remotely. I remind the House that remote speakers speak first after the mover of the lead amendment in a group and may therefore speak to other amendments in the group ahead of Members who tabled them.

Clause 49: Registration

Amendment 64A had been withdrawn from the Marshalled List.
Amendment 64B
Moved by
64B: Clause 49, page 42, line 9, at end insert—
“(5A) Condition C is not met if the parents of the child have made alternative arrangements to satisfy the duty in section 7 (duty of parents to secure education of children of compulsory school age).”Member's explanatory statement
This amendment seeks to exempt home education from mandatory registration, where the standard of learning is such that parents are compliant with their duties.
Lord Wei Portrait Lord Wei (Con)
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My Lords, in moving Amendment 64B I shall also speak to other amendments in my name. I declare an interest, as I have before, that I am from a home-educating family, which I am proud of. I wish there were more noble Lords in this Chamber who had the privilege of being part of home education.

As was discussed earlier, the Bill really should not exist in its current form. It has been thoroughly gutted already, and there were good reasons for that. The reasons for gutting the earlier parts of the Bill are no different from the reasons for doing the same to the end of the Bill, which I am afraid is just as much of a mess.

We live in an age of change. There is more remote working and people want to take more control over their health, and they want to do the same for education. I fear that this Government, and Governments generally, are on the run. More and more parents are choosing to take control of their children’s education, which is their right in this country. We as parents have a duty to educate our children. When we want to, we hand over responsibility to the Government, academies, trusts and so on to fulfil that duty, but in this country it is parents who are legally obliged to provide education for their children, and that is only right. We are not some other countries where the opposite is the case.

In this time of change, where perhaps people are taking back control—though maybe not always in the ways that we might have imagined—that forms a threat, in health and to local authorities. I am afraid I have documentary evidence, which I shall share with the House today, about how that perceived threat has led to real injustices under the current regime, even before this Bill becomes law.

Without protections and, frankly, without a wholescale redesign of this law, on which I may push a vote several times today, we may end up with a circumstance in which the injustices that many families are already experiencing today will be heightened and worsened, and we will see many willingly go to prison to stand on this principle. Having spoken to the Minister and colleagues in the department, I do not think the Government truly understand why anyone would go to prison on principle in order not to have their children on the register. They do not understand why. Is that because they do not have any children who they home educate? I would love to see survey results on how many Ministers, people in the department and people in local authorities home educate their children. If they did then they would take a very different view of what they are trying to do today.

I start by apologising to my colleagues on the Benches who have had to come here in such heat—although, thank God, we are well air-conditioned in this Chamber—to potentially vote on my amendments and those of other Peers. I am truly sorry that my amendment was put in early on the Marshalled List so that they have had to take that kind of heat. However, I ask the House to imagine that they had to face that heat every day for four or five years with no end in sight.

As I start to present my amendments, I shall read the House a few excerpts from a testimony that has been shared with me which has broken my heart. It is under the current regime—the current legal means by which local authorities can monitor and vet home education. I will not share the name of the lady concerned but I want the House to hear her story because there are many similar ones that I and other Peers have been sent. Again, this is happening under the current regime and existing laws.

This lady, a teacher of 20 years’ standing, decided to home educate after a parents evening where her six year-old daughter’s teacher announced that she “would not set the world on fire”. This is a teacher saying that a child will not do anything good in their life, basically. She decided, quite rationally, as is her right, to home educate and the child thrives. In fact, in Kent, where the family started to do this, the local authority visited them, with consent, saw the learning that was going on and valued it so much that it highlighted all the information and resources that were available to support this family. Soon after, the local authority said that it would be a waste of its time and resources to continue to visit this family. Clearly, education was a priority. They were always available and they did not need to have the level of monitoring that they initially had. They were happy for several years.

London, where my children are home educated, is an amazing environment for home education with all kinds of groups. However, this family then moved to Bromley. I am sorry that I have to mention this local authority by name, but it is one of many, according to the letters that I and other Peers have received, that have behaved atrociously under the current regime, which we are about to tighten, by the way. We already have many injustices and many families facing difficulties—I will describe the kind of things that happened to them—but we are about to give the authorities a great deal more power and not even to track down and deal with the bad actors that my other amendments try to start to deal with.

I will fast forward, because of time. This local authority visited the family, asked for lots of information and samples of work, which were kept on record over a long period. The authority’s job was to identify children missing from education. This eventually became unnecessary intrusion. After four years, the family still had no answers; they were still under investigation. Their immediate request for information held about them—remember GDPR, which we will discuss later—was not heard. The family decided not to provide any more information, because the situation was getting ridiculous after four years of constant hounding. It got to the point where the children were scared of the postman coming.

The family requested information. They wrote to Ofsted and they wrote to the department. This is all relevant to my amendments, so forgive me for taking a little more time. Bromley was given a great report for the way it treated this family. Eventually, the family was given a school attendance order, after requesting information being held about them under GDPR rules, with the Information Commissioner’s Office saying that Bromley had to comply. None of the ICO’s requests was followed through. The information that was held about the family was not provided and a school attendance order was slapped on them. The home education was of a very high standard—there was no reason to do that.

We have found out since then that this is a common occurrence. School attendance orders are used to silence families who kick up a fuss, because you cannot complain to the Local Government Ombudsman. I would love to hear from the Minister whether she disagrees and whether she has audited this kind of behaviour, but I hear that it is very common. Most families do not know that it has happened to them; they cannot appeal and they are silenced because they now have a school attendance order. We are about to make this process stronger in the Bill, forcing people to send their children to school where, ultimately, if they do not comply or provide information, prison is what awaits. The Secretary of State has not replied. We have heard before that there is provision for appeal, but both routes are closed for these families. Again, I have other amendments to create better ways to hear their voices.

The point of my first amendment today is that we need to provide protection. One of the ways that we can provide protection is simply to exempt home educating parents who are delivering a high standard of education, in line with current law, from this register. It is, in my mind, ludicrous that those who are doing a good job are put on a register in an open-ended way. At any time, their home education can be interrupted. Those who complain can be forced to send their children to school, so they do not complain or appeal. There is no recourse and no time limit and there is no easy way to overturn this.

We have registers: we have registers for sex offenders and we have registers for criminals. Those who commit crimes are put on the criminal register. Those who commit a sex offence are put on the sex offender register. One of my amendments, Amendment 72A, which I want to talk to later, provides a means essentially to use a warrant mechanism to pursue families that are using home education as an excuse, to investigate possible breaches of the law such as neglect, sex abuse or just not providing an education of any standard at all. But for those many families in the home education community who do educate well—sometimes better, frankly, and sometimes because they have had to remove their children from schools that were not providing a good education, as we have seen in this example, and there are many others that I could share—there are other ways to do this. There are other ways to pursue the bad actors.
I ask noble Lords to think seriously about this. What we are about to do, if we let this clause pass, is create a very dangerous situation. We are two years away from an election. I am speaking here to my Benches, but it applies to other Benches as well. A future Government could come in and, conceivably, change the curriculum to ban a particular philosophical ideology; they could say that free markets are bad or that communism, socialism or green philosophies should not be taught in school. If you then choose to take your children out of school and home educate them, because you feel that it is important that they get a rounded education and that what is missing in schools should be taught as well, suddenly an inspector could come around, because you would be on the register by law, vet what you are doing, ask what you believe politically, observe how you teach your children and make a subjective decision that what you are teaching is not in line with what the Government want your children to learn. At that point you would be given a school attendance order and have no choice and not be able to get out of that system. They have you in your house, as well as at school.
God forbid—I hope that this never happens. I am young, but many of us have lived long enough to see countries around the world where this has happened. Many in this Chamber have left countries where this has happened. It is not beyond possibility that this could happen. On these Benches, we could put this Bill into law and find, in two years’ time, that another Government come in and use the Act against us to go against what we believe is right and proper and say that we cannot teach that to our children.
By all means, let us go after the bad actors. Amendment 72A provides a warrant mechanism, as the police have, in limited means and under certain conditions, to pursue families who are clearly using home education as an excuse. That, in my view, is the biggest problem right now. The authorities need to investigate. Fine, investigate, but do not investigate everybody. Do not put everybody on the register when they are doing a good job and, frankly, need to be left on their own to do that good job. If they do not do a good job and the authorities find out about it, the law already provides the means to pursue them: the Children Act and the Education Act. There are many powers that enable local authorities and other authorities to find and root out bad actors. If we do this, the bad actors will leave the country, they will get into their camper vans and drive around and we will never see them, and they will go into farms, or they will go to prison and it will be on noble Lords’ heads. I have warned today that there are many who feel so strongly about this that they will go to prison. They will take the Government to court and there will be judicial reviews. I have spoken to QCs. The Government’s own report on human rights says that Articles 8 and 9 are under threat.
There is a clash of values: the right to educate children, with free speech and freedom of conscience and faith, with the right to look after children. We need to find the right balance, so I call upon my fellow Peers to support Amendment 64B to exempt parents who are educating their children to the standard required by law from this register. Let us have people on the register who have taken their children out of school but do not intend to educate them to a good standard. Let us have people caught by this amendment who are not doing that, but do not put this on every parent who wants to educate their child in their way and to a high standard. Even former teachers are being pursued, persecuted and threatened. In fact, this lady is prepared to go to prison; she is under this open-ended process that has already ruined the lives of her children for four or five years.
There are other amendments that I want to speak to, but I will stick with Amendment 64B for now and tie it together with Amendment 72A on having a warrant, because the two go together. If we decide to exempt legitimate home-educating parents from this register, we need to catch those bad actors. Amendment 72A goes together with Amendment 64B to provide a mechanism for catching bad actors. We are saying not that we do not want to catch them but “Don’t use the register as a catch-all”, making everybody guilty before they are proven innocent.
I have also tabled Amendment 85A because it is clear that local authorities and even the department itself, I am sad to say, have not been following GDPR rules. When you ask them for information, they drag their feet and do not provide it or agree to remove it if it was unnecessary. I am greatly fearful that, even though the argument will be that the GDPR law is already sufficient, it is not being followed by local authorities or departments, so we need to do something about that. If a local authority abuses the information that it is given there should be consequences, but right now there are not. Right now, there is a flagrant disregard of the law on GDPR in that respect, and we have received lots of evidence in relation to this that I could present if I am pressed.
Lord Grocott Portrait Lord Grocott (Lab)
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I gently remind the noble Lord of the Companion, which says that speakers

“are expected to keep within 15 minutes”.

That is not a formal limit but an advisory one. It says that

“on occasion, a speech of outstanding importance, or a ministerial speech winding up an exceptionally long debate, may exceed”

the limit, but the noble Lord has now been going on for 17 minutes.

Lord Wei Portrait Lord Wei (Con)
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Thank you, I will wrap up.

I have two final amendments in this group. Amendment 86A in my name relates to a refusal to provide info not being sufficient reason to impose a school attendance order on a family. In this instance, the fact that the teacher or home educator did not provide information was seen as evidence that they were not educating their children properly. If you do not provide education and choose on principle not to provide that information, that should not mean that you are not educating your children well or that a school attendance order is put on them. This amendment is to prevent such occurrences happening again.

Finally, I support Amendment 118C on a code of conduct, but others will speak to that. I will give way and let them do that now.

Lord Geddes Portrait The Deputy Speaker (Lord Geddes) (Con)
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I assume that the noble Lord would like to move his amendment?

Lord Wei Portrait Lord Wei (Con)
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I beg to move.

Lord Geddes Portrait The Deputy Speaker (Lord Geddes) (Con)
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My Lords, as I previously advised, I now invite the noble Baroness, Lady Brinton, to speak.

Oh, I have been advised that the noble Baroness does not wish to speak.

Lord Soley Portrait Lord Soley (Lab)
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I was going to get a glass of water, but that is going to be difficult. I thought for a moment that maybe the noble Lord, Lord Wei, was not going to move the amendment. I would have advised him not to. I am sure that he is well intended—I do not doubt that—but he has missed many of the debates on this over the years. I ask him to understand that, when I put the Bill forward on home education, that was five years ago. I never heard from the noble Lord then or had any involvement with him. He did not seem to be interested in it, but I consulted very widely. I consulted by all sorts of measures: I had meetings in the House; I had Zoom meetings up and down the country; I had emails and all those things. I was dealing very much with a small group of people who objected to the register. Most of them came on board; a small minority have not, but the majority support the Bill and the register. They do so because they know it is beneficial.

I think one of the things the noble Lord, Lord Wei, has missed quite seriously is that the provision is designed to be supportive. It is not a punishment, but he does not seem to understand that. In other words, for the first time a home-educating parent will be able to say to the local authority, “I want help to do this bit of home education, which I cannot deliver myself.” It might be in advanced science, music or art; it might be any of those things, and the local authority has to do it. It is supportive, not punitive, and the noble Lord’s whole speech was on the idea that it is punitive.

I say to him, as I have said in previous debates, some home educators are very good at it, but that does not mean that they do not need help at times. Just because you are able to teach certain things does not make you a good teacher without that support and backup which might be, as I say, in advanced sciences or whatever. The noble Lord’s amendment would deny them that and actually make it worse for them.

My line on this—I give credit to the Government, who have adopted most of my Bill here—has been about doing it well, and they have. I had some doubts about the appeal system. I wrote to the Minister about this and she gave me certain assurances in her reply about how that system will work. I made other suggestions too, but I think the Minister is saying that the appeal mechanism is there for both the parents and the authority. We should remember that this is a two-way street. The noble Lord, Lord Wei, says that he has had complaints from people about the way that a local authority has behaved. I say to him: listen to those people, mainly children who are now grown up and had complaints about the way that home education was done to them or, importantly, where it was done partly as a cover for something else. You do not have to think just about abuse here: it is about a child working in a shop and then being told “Well, you’re learning mathematics”; it is about trafficking, too.

Listening to the noble Lord, I think he has no concept of this. His speech was all about the terrible state and the wonderful home-educating parent. Most parents who home-educate in the way that he described do it well. They really have nothing to fear from this because what they will get is support from the local authority, if they ask for it. At the same time, they will have to demonstrate that the child is being properly educated. Is that really wrong?

Lord Wei Portrait Lord Wei (Con)
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Just to clarify a few of my remarks, I want to credit the noble Lord, Lord Soley, the Minister and the Government for doing research. That is important and I hope that the research and consultations that will take place, moving forwards, will bring out more of the data and evidence that we sorely need. I feel that the most recent consultation, which was very short, did not get enough of the opinions of home educators. Many of those who oppose the register are painted as a minority, but that is not necessarily the case. A lot of people—

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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Will the noble Lord give way? My understanding is that it is not normal to have a backwards and forwards between Back-Benchers. I am getting nods from the Front Bench, which is a very rare occurrence from either Front Bench. I am going to speak to my amendment—oh, sorry.

Lord Soley Portrait Lord Soley (Lab)
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I had not finished. It is very unusual to intervene on an intervention. I was speaking and I was giving way to the noble Lord, Lord Wei.

Baroness Penn Portrait Baroness Penn (Con)
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My Lords, it is probably worth clarifying that on Report a Member should speak only once unless it is the Minister. I think we will finish the remarks we have heard; then if the noble Baroness, Lady Jones, wants to make her contribution separately, I am sure we would love to hear it.

Lord Soley Portrait Lord Soley (Lab)
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The noble Lord, Lord Wei, asked me to give way, which I did, but I am quite happy to continue as I have nearly finished.

I emphasise again that there has been far more consultation than the noble Lord, Lord Wei, is aware of. I did not spend the last five years arguing for this Bill just for the fun of it. I did not ignore people. I have had people say to me what they have said to him: “I’ll go to prison rather than this”. Mind you, in a very long career in politics of 40-odd years I have heard an awful lot of people say they would go to prison for one thing or another, but very few do. The poll tax was a near exception, but by and large they do not.

I was saying to those people—to be fair, I won over a lot of them—“Think of this as supportive”. The noble Lord is falling into the trap of a tiny minority who say that this is a wicked state that is going to do terrible things. He has taken that as a fact; it is not. It is not even in the Bill that way. This is supportive. It is not a punishment. He is not doing himself or the House any favours in implying that it is anything other than supportive. I ask the House to reject the amendment.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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My Lords, I am going to be very quick. I would like to speak to my Amendment 86B and later amendments which are essentially saying the same thing: that this Bill is dreadful and ought to be taken away and thought over completely.

Amendment 86B is to delete Clause 49 entirely because it is such a far-reaching clause that it will create a bureaucratic nightmare for thousands of families. At the same time, it will fail to achieve the Government’s stated policy aims. I am also completely puzzled about how overstretched local authorities will be able to implement these new powers and duties. Having been a local councillor, I know how hard they work and how overstretched they are already—even before the recent government cuts.

Overall, I am convinced that Clause 49 will turn out as a total legislative failure and will leave a trail of destruction that will probably be ignored because home-schooling families are a minority in this country. I wish the Government would see sense on this and support the deletion of this clause, as they have with significant other parts of the Bill which they acknowledge were also unworkable. Within that, I would like to include my deletion of other parts of the Bill in Amendments 93A, 95A and 95B.

Finally, on my Amendment 118C, the government amendments are a step in the right direction, but a long way from the necessary protection that families need from these new powers. A code of practice would address the data protection concerns that many parents have. I urge the Minister to think about that.

Lord Lucas Portrait Lord Lucas (Con)
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My Lords, I have several amendments in this group. If I were to say one thing to my noble friend the Minister, it is that I really hope the department will use the time it has while dealing with Part 1 to advance its thinking on the guidance and other aspects of the Bill so that, by the time it gets considered by the Commons, its thinking is rather more detailed and matured than what we have had the chance to look at. That would be a real help.

My noble friend Lord Wei raised some issues of true Conservative principle, which I hope home educators will find the opportunity to discuss with the candidates during August. Home education is a matter of freedom. Although the noble Lord, Lord Soley, and my noble friend both say that the Bill is supportive of home education, in many details it is not.

As my noble friend Lord Wei said, many letters are reaching us describing situations in which local authorities have been, frankly, abusive to home educators without any obvious good reason. I have pursued some of these matters with local authorities. I will not name the one I have talked to, but it is clear that they allow the difficulty that they have with some families to spill over into the way that they deal with those who are, on the face of it, doing a pretty good job—for instance, harassing a child who had a stroke aged six and saying that the child, rather than being cared for specially within their family, must be cast into school, not accepting independent reports about this child and saying that they must have more, different evidence. That is not in any way conducting their relationships in a supportive way. There have been cases where they have made really unpleasant remarks about home educators privately, and then, by mistake, copied others into emails. This shows that among a good number of local authorities there is a very unsatisfactory attitude to home education.

I am very keen that the Bill contain safeguards which put home educators, particularly good ones, in a position where they can reasonably hope to argue their case. We will come to some more details of that later. My noble friend Lord Wei espouses some true Conservative values of freedom and family which the Bill does not recognise sufficiently. One could also argue for efficiency, in that the best local authorities seem to do a very good job and, with the same money, go beyond what is achieved elsewhere by building up a pattern of trust which enables them not to spend time harassing people who are doing a good job.

The Bill as it is at the moment is not efficient, nor does it pay sufficient attention to all those occasions when the state is failing children. We have an amendment later, which I applaud, which says that children who have been excluded should not be placed in unregistered institutions. Oh, my golly—that is the state doing that. Why are we fussed about what good private educators are doing when there are things like that being done by the state?

There is a flavour in some of the remarks I have read from local authorities of a difficulty with difference which we should surely not allow. Local authorities have to deal with a lot of very different people, including Gypsies and others who choose to live a lifestyle which is not at all in accordance with the normal. Fear or dislike of difference should not be something one finds in a local authority. I entirely understand where the noble Lord, Lord Wei, is coming from, but my wish in the Bill is to find ways of improving it in its detail rather than attacking the principle of the register.

Amendment 65 looks at the

“means by which the child is being educated”.

That is widely seen—I think correctly—as permitting the Government to inquire deeply into the exact way in which a child is being educated. That is one of the ways the worst local authorities have adopted to oppress home educators. They ask for more and more detail. They ask for things that home educators are not doing, like having a timetable. There is a whole structure of education which is necessary in school but does not apply to home education. Home education can be centred on the child and be very different. The question is: is it effective and sufficient? Is it doing what it should do to bring out the qualities of the child? The structure of what is being provided should not be open to question and attack if the outcome is sufficient.

Amendments 65 and 66A suggest alternative ways of dealing with that, and in Amendment 66 we will come to another, when the right reverend Prelate speaks to it. With Amendment 66A, we are looking at a limit to who is providing the education. The Government want to know what outside people are providing the education that a child is receiving. That seems to me to be a reasonable bit of information to ask for, and is well short of the worrying implications of the wording as it is.

In Amendment 85, I come back to a subject I raised in Committee. One of the justifications for the register is so that we know what is happening to children. I find that quite persuasive, but if we are going to do that, we ought to know what is happening to all children in this country; we should not leave bits unexamined. At the moment, your standard independent school does not return data to the Department for Education on the children in its charge. I do not think it takes legislation to change that; it just takes the Government to decide that they want that, and to ask for it—they have the power. But if the justification for a register on home educators is that the Government ought to know what is happening to children, that same thought ought to apply to independent education too.

Lord Bishop of Carlisle Portrait The Lord Bishop of Carlisle
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My Lords, I speak on behalf of my right reverend friend the Bishop of St. Albans, who has two amendments in his name, Amendments 66 and 94. His name is also listed on Amendments 65 and 66A, in the name of the noble Lord, Lord Lucas.

Amendments 65, 66 and 66A continue to take issue with the proposals for details of the means by which a child is being educated to be included on the register. Amendment 66 would replace this with a determination of suitability, and provide for visits by the local authority for determining that suitability to be recorded. However, further to communication with the Department for Education and the Minister, we understand that their interpretation of the word “means” does not relate to the educational content or methods of home educating but simply to the providers of the education, since separate rules for registration will pertain to out-of-school education. We have been informed that this framework will be set out in the future statutory guidance. This is a much more positive interpretation than had previously been supposed, but if this is the interpretation I am not sure why it could not have been contained within the primary legislation rather than prescribed at a later date. Amendment 66A, from the noble Lord, Lord Lucas, would naturally resolve that problem.

We are most grateful for the Minister’s communications with the Bishops’ Bench to clarify this matter. However, the terminology remains unhelpfully ambiguous. I hope that the Minister can alleviate the concerns of home-schoolers and state on the record that this simply means inquiring into who is providing the education and not the substance of the education or the methods of teaching.

I turn now to Amendment 94, which would insert a new clause after Clause 50 and seeks to provide protection for the institution of home schooling against any undue or unfair interference. The proposed new clause would ensure that any contact between the local authorities and home-schoolers respects protected characteristics, as well as Article 2 of Protocol No. 1 to the European Convention on Human Rights, as in the Human Rights Act, in making sure that

“the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”

The point is that the way in which this Bill is framed could be seen to cast a cloud of suspicion on all home educators. The noble Lords, Lord Lucas and Lord Wei, have already raised that point. Some parents are also worried that this register is the thin end of an invasive wedge that could lead to undue state prescription with regard to home schooling.

That is not to say that home schooling itself is not sometimes prescriptive. Some individuals opt for home schooling precisely because they disagree with certain materials being taught in school, when it conflicts with their deeply held beliefs. However, there is a difference between the state being prescriptive in trying to mould individuals into a specific world view and the liberal principle of allowing parents the right to determine the values and beliefs with which they want their children to be brought up. Many Christians, Muslims, Jews and people of all faiths or none home-school on account of this. What is important is the principle that the state does not have the right, under normal circumstances, to supersede the rights of the parents in determining how they ought to raise their child.
The misunderstanding that has occurred from the initial framing of this Bill has been unhelpful. I think it has harmed the prospective relationship between home educators and local authorities. Amendment 94 reassures home educators that their fears are unfounded. It would put into law where the Government place the limits of intervention in home education and ensure that there is sufficient accountability for local authorities and the Government in upholding the principle of home education.
I suspect the Minister may argue that these provisions are unnecessary, as they are already contained in the Equality Act and the Human Rights Act, or are responding to things that do not currently exist in law. Nevertheless, a positive statement clearly outlining on what grounds interference is not acceptable, alongside a further commitment from the Government to reaffirm the fundamental principles of home schooling, would counter many of the underlying concerns home educators have about the implications of this Bill.
I know that the communication the Minister has had with my right reverend friend the Bishop of St. Albans has been greatly appreciated. It would be tremendously useful if she could confirm on the record how home educators will be both consulted and reassured as we move towards the statutory guidance that will underpin many of the provisions on home education.
Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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My Lords, I am very supportive of Amendment 64A. Amendments 65, 66, 66A and 94 are also ways of reassuring and protecting home-schoolers in the Bill.

The noble Lord, Lord Soley, made the point that, over his many years in politics, many have threatened to go to prison for their beliefs and rarely do. We all recognise that point. But it is also true that, over the many years that I have been involved in politics, I have been reassured that many a law is supportive and not a punishment or threat, and I have learned not to take much notice of that either. The notion that if you are a good actor you have nothing to fear is actually quite chilling, because then you have to ask who decides who the good actors are—who will define what a good parent is, in this instance. It is a little unfair that people who feel so strongly that they say they would go to prison are dismissed, because it speaks to the fact that this Bill has created uncertainty. The Minister has gone out of her way to be reassuring—I do not dismiss that; that is something to be taken seriously—but all that these amendments are trying to do is to codify that reassurance in a variety of ways, rather than just having it on word of mouth.

It is not helpful to say whether it is a minority of home-schoolers who are worried about the register or a majority. In a way, who cares whether it is a majority or a minority? It is the principle, and the noble Lord, Lord Lucas, has made that very clear. I emphasise that there is a principle of freedom here that we should not just throw out or dismiss as some sort of inconvenience to more pragmatic concerns.

The problem with the register is that it is not just a register; it ends up looking as though it requires far more on details of means, as the right reverend Prelate just explained—more than you need in a register. It does not just tick a box. That is why many home educators are very anxious about it. I am not a home educator and have never been home educated; to be frank, I am not interested in home educators per se, but I am interested more broadly in a situation where the state collects so much data and information—a database of children—and interferes in our freedom in a democratic society to home educate, if that is what we want. As the right reverend Prelate the Bishop of Carlisle explained, the cloud of suspicion being created that this is a potential assault on deeply held religious and philosophical freedoms is something we should all take seriously as democrats who support a free society.

The suspicion that some home educators have of the state and the way that education is conducted is what we should be discussing in relation to this Schools Bill—if it were not such a basket case of a Bill that we cannot get anywhere on what we ought to be discussing, which is irritating. We have a problem when many parents believe that the state cannot be trusted to educate their children. All sorts of controversial issues come up. I do not think it is a criticism of home educators that they do not trust the state or think that it does not provide the kind of education that their SEND child or bullied child needs, or that they do not want someone to be exposed to the kind of materials in sex and relationship education that we will probably discuss later, which have been all over the news. These are reasonable philosophical ideas to hold; they, and religious freedom, are things that we should be protecting in this House.

We should remember the Telford report, which I just finished reading over the weekend. We have to be careful when the state starts saying that the people acting suspiciously are the parents. I also read the Oldham report, in which state actors—councils, schools, the police and all sorts of people—ignored in plain sight the sexual grooming and abuse of thousands of young people. I am not prepared just to say that I trust the state. It is perfectly reasonable when people do not, but we at least have to reassure them about their freedoms to withdraw from state schooling. After all, it is not the law that you have to school your child, simply that you have to educate them. I trust those parents to educate them as much as I trust the state. Where there are bad actors, you act, but you do not treat everyone all the time as potential bad actors.

Lord Storey Portrait Lord Storey (LD)
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My Lords, I said at Second Reading, putting the register aside for a moment, that we as a society have a responsibility to ensure that all our children are safe, secure and educated. If that is not happening, we need to ask why and what we can simply do to make sure that every child is safe and educated.

Over the last seven or eight years, I have put down a whole series of Written Questions asking how many children are missing from our school rolls, such that we do not even know where they are. The answer is that we do not know. The best we can do currently—this goes back to 2018-19—is information from the National Crime Agency, which, by the way, identifies as missing anyone whose whereabouts cannot be established and who may be the subject of a crime or at risk of harm to themselves; examples include child trafficking, getting involved in drug pushing, et cetera. It concluded that there are 216,707 children missing whose whereabouts we do not know. That is a very low figure. I think it is considerably higher than that.

For me, that is what this debate is about: protecting children and making sure that they are safe, secure and educated. That is why I welcome these measures on home education and congratulate the Government on having the courage to pick up this political hot potato and try to do something about it—it is not perfect; I take it for granted that there are some concerns—and about unregistered schools.

Of course, the right reverend Prelate the Bishop of Carlisle was right about parents’ rights and values, but society has to make sure that, when children are in schools which are not subject to any checks or inspections, they are not being taught the most appalling practices, which Ofsted highlights in its reports. There have been a couple of cases where it has taken those schools to court and managed to close them down—the right reverend Prelate would be horrified if he knew. One such school, which was not unregistered, was a Christian school as well; I am happy to talk to him privately about it.

Let us understand where we are coming from in this debate. We all have anecdotal evidence of home tuition and teaching. I listened with great interest to the concerns of the noble Lord, Lord Wei, and his worries about what might happen. I accept that the noble Lord, Lord Lucas, is absolutely right that there have been some appalling practices by local authorities; there have also been some fantastic practices by them, which should be the model for how we behave. That is why I will suggest in the next group that local authorities appoint home school co-ordinators.

I have been struck by the number of emails I have had—I think it was 82 at the last count—from home educators. They have concerns, of course, or they would not be emailing me, but I come away thinking, “Wow, what a tremendous job you’re doing.” I have met some of them. I met one last week, who told me about how she had ignited an interest in the Tudors in her daughter. I thought again, “What a tremendous job you’re doing.” However, those actually doing the work of home tuition are perhaps seeing problems that will not be there.

We need a simple register which collects some simple information. I did not know and was quite surprised to learn that independent schools do not provide any data—that is a new one on me. They should be doing so. As the noble Lord, Lord Lucas, rightly said, we should know where all our children are—whether they are in school, home educated, in an unregistered school or in the independent sector. Let that be the rallying call from these amendments.

Lord Hacking Portrait Lord Hacking (Lab)
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My Lords, I am in a bit of a dilemma. My noble friend Lady Jones of Moulsecoomb, if I may so refer to her, has spoken to all the clauses she would like to have taken out of the Bill. When I was last in the House, during my 26 years, the issue of whether a clause remained in the Bill came up only in debates of clause stand part. At that stage only did the argument come forward, if someone wanted to make it, that a clause no longer stand part of the Bill.

The logic of that was quite plain. It was only when the clause had been all the way through the House that a decision was taken, not on the state of the Bill as printed but on the state of the Bill as amended. In this particular case, even on Clause 49, there are a number of substantive amendments by the Minister, and so it is a bit of a dilemma.
I want to record that I support entirely the noble Baroness, Lady Jones, in deleting those clauses from the Bill. For my own part, I want every single clause in Parts 3 and 4 to be taken out of the Bill, but that must come later. So, what I propose to do is not speak until the second group of amendments where my amendments are identified, but I do not want it to go past this House that I am not supporting the noble Baroness, Lady Jones, my friend, in her amendments; she is asking for all the clauses in this Bill, from 49 to 52, to be removed. So, if I may, I will speak on the substantive issue in the next group of amendments.
Baroness Chapman of Darlington Portrait Baroness Chapman of Darlington (Lab)
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My Lords, on the amendments tabled by the noble Lord, Lord Wei, we disagree in principle on this. Of course we respect the ability of parents to educate their own children, but nothing in this Bill prevents parents from educating their children at home. The sad truth is that home education is being used, sometimes, as a front for neglect, or even abuse. This is happening, and many of us here have seen too many examples of this, but there are multiple examples of great practice too—of course there are—and examples, as the noble Lord, Lord Storey, quite rightly said, of local authorities playing a supportive role. Clearly, there are situations where this relationship has not been successful, and I would be interested in what the Minister has to say about what she is planning to do to make sure that that is prevented wherever possible.

But registration does not mean that children will be forced to attend school. The reference of the noble Lord, Lord Wei, to the sex offender register was unfortunate and inflammatory, and the noble Lord’s Amendment 72A, on the obligation to provide information, raises great concern for me, where it says that

“A local authority may only require parents to provide the information under this section if the local authority suspects that the parents are educating the child in such a way that it may lead to the child conducting violence or sexual or physical abuse against others.”

There is nothing about the protection of that child. I could never vote for that, and if the noble Lord chooses to divide the House on his amendments, we will be voting to make sure that they are not included in the Bill.

My noble friend Lord Soley has told us previously that he has been waiting for these measures to be brought into law for some time. He has done sensitive and sterling work for very many years on this issue, and I pay tribute to him for the kind way that he handled responding to the noble Lord opposite, and for the work that he has done over some time.

The noble Baroness, Lady Jones, made important points about the capacity of local authorities, but I note that many local authorities, when asked, have welcomed the approach being taken. Obviously, the proof is going to be in the implementation, and we do not dismiss the concerns about how this Bill will work in practice. But, as the noble Lord, Lord Storey, said, the balance here between the freedom of home educators, which we recognise, and the safeguarding of children, has not been where it needs to be previously.

We welcome the Government’s amendments in this clause. We agree very much regarding our obligations to support and protect children, and with the reassuring words of the noble Lord, Lord Storey, on this issue. We should be celebrating home education; too often, it has been viewed—and I think home educators themselves have picked up on this—with some suspicion, or even ridicule, not just by local authorities but in society generally. There is no need for that, and having this clearer framework may actually support the recognition of home education as a valid way of educating children.

It would, though, having said all that, be very helpful to alleviate some of the fears of home educators if the Minister could explain to the House what she intends to do ahead of, and after, implementation, to take home educators with her, so that the threat and fear can be reduced, and home educators can be properly reassured.

Baroness Barran Portrait Baroness Barran (Con)
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My Lords, I rise to speak to the first group of amendments which relate to the proposals for children not in school registers. If I may, I would like to start by thanking the noble Baroness, Lady Chapman, and the noble Lord, Lord Storey, for their very constructive remarks in setting the context in which these measures are being introduced. I would also like to echo the noble Baroness opposite’s remarks regarding the noble Lord, Lord Storey, and his, as she said, very sensitive and kind work on this. Obviously, sensitivity and kindness are really important, because we are talking about parents who care desperately that their children get the right education, and all of us as parents can recognise how important that is.

Amendments 64B and 72A, from my noble friend Lord Wei, seek to narrow the eligibility criteria for the registers. Local authorities would still need to make inquiries and hold certain information to ascertain a child’s eligibility to be on the register, and indeed to check whether a child is at risk of harm. This is not materially different to local authorities recording this information in a register, except that the effect of these amendments would hinder local authorities from discharging their existing duties. The House has already heard reflections from the noble Baronesses, Lady Jones and Lady Chapman, about the pressures that local authorities are under.

It is vital that the registers contain information on all children not in school. The registers are there not just for safeguarding reasons but also to aid local authorities to undertake existing responsibilities to ensure education being provided is suitable, to help them identify children who are truly missing education, which will become easier once we know where all children not in school are, and, critically, to help them to discharge their new duty to provide support to home-educating families. As other noble Lords have said, this in no way diminishes the rights of any parent to decide to educate their child at home.

My noble friend talked about the lack of opportunities for appeal and complaints. There are a number of routes for complaints available for parents in relation to school attendance orders. First, they can ask the local authority to revoke the order, and the local authority must act reasonably in deciding whether or not to agree to this. If the local authority refuses, the parents can appeal to the Secretary of State to give direction; the Secretary of State will consider each case individually and will make a balanced judgment on the information available, and has the power to direct the local authority to revoke a school attendance order. The Education Act 1996 also gives the Secretary of State powers to intervene when a local authority exercises its functions unreasonably or fails to comply with duties under that Act. We are also looking at how we can strengthen independent oversight of local authorities and considering alternative routes of complaint for home-educating parents.

I will also write to my noble friend, and to the House, to clarify once again the fact that the failure to provide information to a local authority is not criminal. Rather it starts the whole process for a school attendance order, but in the interests of time I will set that out in a letter.

I also thank my noble friend Lord Lucas and the right reverend Prelate the Bishop of St Albans, and, on his behalf, the right reverend Prelate the Bishop of Carlisle, for their Amendments 65 to 66A. The measures in the Bill do not give local authorities any new powers to monitor, assess or dictate the content of education. The right reverend Prelate talked about a “cloud of suspicion”, and I think it would be unfortunate if he was right about that. We have striven to be clear about the scope of the powers and when any new powers are required. We are of the view that local authorities’ existing powers are already sufficient to assess the suitability of the education being provided. Therefore, I would like to be clear that the phrase in the Bill

“the means by which the child is being educated”

does not include the content of the education itself. I am happy to put that on the record. It is limited to matters such as whether the child is taught entirely at home or also attends education settings, which settings they are, and how much of their time the child spends there.

It is important to keep this existing drafting to ensure that local authority registers not only include information on where a child is being educated other than at school, such as entirely at home or at out-of-school education providers, but what proportion of their education they are receiving at those settings. Capturing this information will help local authorities identify those children who may be receiving most, if not all, of their education in unsuitable settings, such as illegal schools. Regulations will set out the details of the child’s education provision to be included in registers, as well as whether or not a child is assessed to be receiving a suitable education. I have tabled Amendment 86 to enable these, and other regulations concerning the collection and sharing of data, to be subject to increased parliamentary scrutiny.

Turning to Amendment 67, I reassure the noble Baroness, Lady Brinton, that it is already the Government’s intention, through regulations, to require local authorities to record the reasons why a child is eligible for registration, and Amendments 68, 69 and 73 in my name make provision for this. We believe that this information will be invaluable for understanding why parents may be home educating, including identifying systemic issues such as insufficient SEN support or off-rolling—all concerns that your Lordships have raised, rightly, during the passage of the Bill.

It was always our intention that the power in new Section 436C(1)(d) should be used to prescribe the inclusion of information, such as this, aimed at promoting the education, welfare and safety of children, but we recognise the concerns raised about its breadth. We have therefore proposed its removal and replacement with a targeted list of matters, which would allow for the inclusion of information such as reasons for eligibility, the child’s protected characteristics, or whether they are a looked-after child, on a child protection plan or a child in need.

Amendments 85A, 94 and 118C concern the important issue of safeguarding data. It is our intention that data protection be a key area of focus during implementation, but to provide more reassurance we have sought to introduce additional protections for families. Amendment 70, in my name, will place in the Bill our existing commitment that no data that could identify a child or parent be published or made publicly available.

Amendments 71 and 72, also in my name, will also ensure that the information parents are required to provide is limited to information that is essential for the operation of the registers, which I hope will reassure parents of our commitment to processing sensitive data only where it is necessary. Disclosure of any additional information prescribed for inclusion in the registers under new Section 436(1)(a), such as protected characteristics, which may be more sensitive, will be voluntary. The amendments also remove any possibility for the school attendance order process to be triggered on the basis that a parent has failed to provide information for a local authority’s register that they do not have or know. While the power in new Section 436C(1)(a) would still allow for some additional information to be prescribed, not detailed in the matters listed, noble Lords should be reassured that this is limited, allowing only for information of a similar kind to be prescribed where the Secretary of State considers it appropriate for promoting the education, welfare or safety of children.
It is important that there be flexibility in this power should other types of information come to light as beneficial for inclusion, such as whether a child is subject to a supervision order or is a young carer. However, parents would still have the option not to disclose this, should they wish. The noble Baroness, Lady Chapman, invited me to elaborate on how we plan to work with parents. I have said previously, and am happy to do so again, that we will be working with parents, local authorities and safeguarding experts to create the implementation guidance for the register. We hope very much that local areas will watch what is happening with that national panel, and encourage them to do so, and, if they feel it is appropriate, perhaps to consider mirroring it in their local area. The hopes and fears we have heard expressed in the debate will be felt by parents, children, local authorities and safeguarding experts. It is only by bringing all those groups together that we can come to proposals that will, I hope, work in practice but also be trusted and understood by those who are affected by them.
On Amendment 85 from my noble friend Lord Lucas, we will give further consideration to whether it is appropriate to require independent schools to complete the pupil-level school census that state-funded schools complete. But there is no need for any legislation in order to be able to do this. The aim of my noble friend Lord Wei’s Amendment 86A would be counterproductive to the changes to the school attendance order process to minimise the time a child spends in unsuitable education. It would significantly hamper a local authority’s ability to establish the facts of a child’s education and leave it unable to take further action to remedy a lack of education. This is surely an unacceptable outcome. Finally, I hope that the statements I have made today provide the noble Baroness, Lady Jones, with sufficient reassurances on her Amendment 86B.
I ask my noble friend Lord Wei to withdraw his Amendment 64B and other noble Lords not to press their amendments.
Lord Wei Portrait Lord Wei (Con)
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My Lords, I thank all noble Lords who have participated in discussing these amendments and thank the Minister, who I pay tribute to, as many others have done, for her long-suffering forbearance with all our discussions on various aspects of the Bill.

I accept that the Government are taking, and are planning to take, account of some of the concerns that have been raised today. My main issue, and the reason I have shifted from my earlier position on the Bill, is that my concerns have been raised by existing bad practice that we are seeing in the interaction between local authorities, the department and home-educating families. If that were not the case, and there were many more local authorities—which I applaud as well—doing a great job, I would not be standing before your Lordships today. However, sadly, if the current situation is that sufficient protection is not in place for home-educating families, what confidence do we have, until we actually see the detail later on, that these abuses by local authorities will not happen later?

My Amendment 72A, which would provide a warrant, is designed to allow us to pursue bad actors. We also have through the Children Act ways to pursue people who neglect their children, so we can protect the children. However, the problem is that we do not always use properly those rules and laws—or the data that we can collect, in a co-ordinated way, together, to pursue those bad actors. I genuinely still believe that this register will cause bad actors to go under the radar.

Therefore, I would like to test the opinion of the House. I am not saying that we should not have a register but it should be there for parents who do not believe that they are providing the level of education that the law requires them to provide. Those who are uncertain can seek advice and support from the local authority, but those who just want to get on with the job should be given the right not to be interfered with in doing so.

Lord Soley Portrait Lord Soley (Lab)
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The noble Lord would give a right not to go on the register to those who he would say are educating their children okay. How on earth are you going to define that without giving the state even more powers? It is contradictory.

Lord Wei Portrait Lord Wei (Con)
- Hansard - - - Excerpts

The law already places a requirement on parents to educate their children to the standards that the law requires; therefore, I would just refer to the law. It is not for me or for us here to specify in detail in the Bill what that looks like, and the moment we do so, we will have overstepped the mark.

I am more satisfied by the Minister’s response on Amendment 85A, that greater care is being taken on the use of the information in this register, and I look forward to hearing about that.

Finally, on Amendment 86A, again, existing practice evidences to me that local authorities are not necessarily respecting parents’ rights not to be interpreted as not providing a good education by not providing information. That misunderstanding is dangerous, and I have not heard anything yet that satisfies me that the plans that will be put forward will solve that problem. If you refuse to provide information, you should not have a school attendance order put on to you. That may create problems, but it should be a principle. We have that in law: when you are arrested, you have the right to remain silent. Why, then, if you do not provide information in this instance, are you forced to send your child to school on the pretext that you are not providing a good education? There are many ways in which local authorities can get information. Forcing parents to do so by saying, “If you don’t do so, your child will be forced to go to school” is the wrong way to go about this. Therefore, I wish to test the opinion of the House.

Division on Amendment 64B called. Division called off after six minutes due to lack of support for the Contents when the Question was put a third time.
Amendment 64B disagreed.
Amendments 65 to 67 not moved.
Amendments 68 to 72
Moved by
68: Clause 49, page 42, leave out line 30
Member's explanatory statement
This amendment removes the broad power to prescribe information that must be contained in the register of children not in school. It is replaced with a more targeted power: see the new subsection (1A) inserted by the amendment in Baroness Barran’s name at clause 49, page 42, line 30.
69: Clause 49, page 42, line 30, at end insert—
“(1A) A register under section 436B must also contain such information about, or in connection with, the following matters in respect of a child registered in it as may be prescribed, to the extent that the local authority have the information or can reasonably obtain it—(a) the child’s protected characteristics (within the meaning of the Equality Act 2010);(b) whether the child has any special educational needs, including whether the local authority maintain an EHC plan for the child;(c) any actions that have been taken by a local authority following, or in connection with, enquiries made by a local authority under section 47 of the Children Act 1989 (local authority’s duty to investigate);(d) whether the child is a child in need for the purposes of Part 3 of the Children Act 1989 (see section 17(10) of that Act) and, if so, any actions that a local authority have taken in relation to the child under that Part and any services that a local authority have provided to the child in the exercise of functions conferred on them by section 17 of that Act;(e) whether the child is looked after by a local authority (within the meaning of section 22 of the Children Act 1989);(f) the reasons why the child meets Condition C in section 436B, including any information provided by a parent of the child as to those reasons or, in a case where a parent has not provided that information, the fact that they have not done so;(g) whether, under arrangements made under section 436A, the child has been identified as a child who is of compulsory school age but who is not a registered pupil at a school and is not receiving suitable education otherwise than at a school;(h) the school or type of school (if any) that the child attends or has attended in the past;(i) whether support is being provided in relation to the child under section 436G and, if so, the nature of the support being provided;(j) any actions that have been taken by a local authority in relation to the child under sections 436I to 436P (school attendance orders);(k) any other information about the child’s characteristics, circumstances, needs or interactions with a local authority or educational institutions that the Secretary of State thinks should be included in the register for the purposes of promoting or safeguarding the education, safety or welfare of children.”Member's explanatory statement
This amendment replaces the broad power currently in section 436C(1)(d) to make regulations detailing information to be included in the register of children not in school with a more targeted power which sets out the matters which regulations may cover.
70: Clause 49, page 43, line 2, at end insert—
“(4) No information from a register under section 436B may be published, or made accessible to the public, in a form—(a) which includes the name or address of a child who is eligible to be registered under that section or of a parent of such a child, or(b) from which the identity of such a child or parent can be deduced, whether from the information itself or from that information taken together with any other published information.” Member's explanatory statement
This amendment would prohibit publication of any information from a register under section 436B which identifies a child who is eligible for registration or a parent of such a child, or allows such a child or parent to be identified.
71: Clause 49, page 43, line 8, leave out from “with” to end of line 11 and insert “any of the information referred to in section 436C(1)(a) and (b) that the parent has.”
Member's explanatory statement
This amendment reduces the obligation on parents to provide information to the local authority when their child becomes eligible to be registered on the children not in school register: it would mean that they would only need to provide information that they have about their child and themselves and the other parent, and not the information prescribed by regulations.
72: Clause 49, page 43, line 14, leave out from “with” to end of line 17 and insert “any of the information referred to in section 436C(1)(a) to (c) that the parent has,”
Member's explanatory statement
This amendment reduces the obligation on parents to provide information, on request from a local authority, in cases where the child is on the children not in school register: it would mean that they would only need to provide the information mentioned in section 436C(1)(a) to (c), and not any information prescribed in regulations under the new subsection (1A) (inserted by the amendment in Baroness Barran’s name at clause 49, page 42, line 30).
Amendments 68 to 72 agreed.
Amendment 72A not moved.
Amendment 73
Moved by
73: Clause 49, page 45, line 21, at end insert—
“(aa) must provide the other local authority with any information relating to the child that is prescribed under section 436C(1A) that they have,”Member's explanatory statement
This amendment is consequential on the amendment in Baroness Barran’s name at clause 49, page 42, line 30.
Amendment 73 agreed.
Amendment 74
Moved by
74: Clause 49, page 45, line 24, at end insert—
“(A1) Local authorities must—(a) recognise that the first responsibility for educating a child lies with its parents,(b) be supportive of those who elect to educate their children at home,(c) recognise that home education is of itself not a safeguarding issue, and(d) acknowledge that in many instance the decision to home educate reflects failures by other institutions of the state.”
Lord Lucas Portrait Lord Lucas (Con)
- Hansard - - - Excerpts

My Lords, in moving Amendment 74 I will speak also to Amendments 75 and 78. It is important in the context of the relationship between local authorities and home educators that there is a very clear statement of that relationship. I have set out a couple of versions of that in Amendments 74 and 75. I would be content if this was to find its way to the top of the guidance, which is a document that both local authorities and home educators will need to be able to refer to and get clear guidance from. Amendment 74 contains a statement of the fundamentals of the relationship which seem important to me.

On Amendment 78, I will defer to the noble Baroness, Lady Garden, when she speaks to Amendment 77. I am thoroughly in support of what she is proposing. That home-educated children should be enabled to take exams has been a long-running problem and ought to be one of the things that we and local authorities are doing to support them.

I am also very much in favour of the amendments in the names of the noble Lords, Lord Hunt of Kings Heath and Lord Storey, and look forward to hearing from them. If we happen to have the noble Baroness, Lady Brinton, on the line, which I hope we do, I think her direction of asking local authorities to take account of expert advice is important. I know of several occasions when local authorities have said, “It doesn’t count. It doesn’t matter. We’re interested only in what we hear directly from the parent. Expert advice is not something we listen to.” I do not think that is the right attitude; the attitude described by the noble Baroness, Lady Brinton, is right. I beg to move.

Baroness Garden of Frognal Portrait Baroness Garden of Frognal (LD)
- Hansard - - - Excerpts

My Lords, Amendment 77 is in my name, and I am delighted to have the support of the noble Lord, Lord Lucas. This is a very modest amendment so I hope the Minister can agree it without too much difficulty—one always lives in hope in this place.

Home educators save the country thousands of pounds because they are not using state-funded education systems, but they often have difficulty finding a test centre for their children when they want to take public examinations, and when they do find one they have to pay exam fees, which can amount to hundreds of pounds, for the privilege of doing so. Of course, many home educators are not wealthy and struggle to find the money for the fees, but surely home-educated children are as entitled as other children to have public recognition of their learning in the form of examinations. This amendment would guarantee that home-educated pupils had a place at which to sit their national exams and financial assistance to ensure that no child is denied recognition of achievement because their parents cannot afford the fees.

As I say, it is a very modest amendment and I hope the Minister will look on it favourably.

Lord Knight of Weymouth Portrait Lord Knight of Weymouth (Lab)
- Hansard - - - Excerpts

My Lords, in the absence of my noble friend Lord Hunt, who is in the Moses Room grappling with procurement, I will speak to his Amendment 79, to which I also put my name. It would require a local authority to have regard to the case of a SEND child and to listen to the wishes of the child and the parent around provision decisions; the information and support necessary to enable participation in those decisions should be present.

It is an important amendment, given that in so many of the cases that we have heard about where parents are anxious about the Bill’s measures in respect of home education, they are parents of children with some form of special educational need or disability. They have felt that their child’s needs are not being properly addressed in the maintained sector and have therefore chosen to home educate their children. It is important that there is some safeguard for that group in particular, so that the parents’ and child’s wishes are properly considered in the context of what we are trying to do in the Bill.

I also support Amendment 74, moved by the noble Lord, Lord Lucas. The amendment of the noble Baroness, Lady Garden, which I supported in Committee, makes an important case for support for sitting national examinations and the cost of doing so. By consequence, I support Amendment 78.

Finally, having listened carefully to the noble Lord, Lord Wei, on the previous grouping, and given the problem that the Local Government Ombudsman does not apply in the cases of parents of home-educated children, I think it is important that there is some kind of independent complaints service or ombudsman service. I shall be interested in the Minister’s response on how that independent voice to handle complaints about local authorities, with the diverse range of services that they might provide to support home-educating parents, might be provided.

Lord Addington Portrait Lord Addington (LD)
- Hansard - - - Excerpts

My Lords, it might be appropriate if I speak first to Amendment 76, which stands in my name and that of my noble friend. As the noble Lord, Lord Knight, just mentioned—and I thank him for his support—and as I think we have heard from around the Chamber, if you are dealing with a very rare condition, a teacher or the school cannot be expected to know everything about it.

What we expect teachers to deal with now has expanded. Special educational needs have been spoken about already, and we have a better understanding of them: it is not some fad or anything that is made up about various conditions. I refer the House to my declared interest in dyslexia; that is just one. All these conditions will be present in the classroom, and we now expect schools to deal with them. Expecting them to deal with every medical condition that might affect the way children should be taught is beyond the pale. Commonly occurring ones? Yes. The rest of them? No. There should be a duty on the school and the education authority to communicate and to take it on board when something else arises. That is quite straightforward.

Indeed, many of the amendments in this group are about establishing that supportive relationship between such bodies and home educators. I hope that we hear some supportive words from the Government on that, and on Amendment 84, in the name of my noble friend Lord Storey, which makes provision for some sort of co-ordination of support for those who are home educating, and a relationship. I am hopeful that the Minister will have something positive to say in this area. We need to support those who are, let us face it, at the most basic level, saving the public purse some money. If they are doing it properly, let us help them.

Lord Wei Portrait Lord Wei (Con)
- Hansard - - - Excerpts

My Lords, I will speak to my Amendment 118 and in support of Amendment 74. As I said before, I have real concerns. I accept the intentions of the Government as stated by my noble friend, and I hope that this summer will provide an opportunity to come up with independent appeals processes which are not operated just by local authorities or the Government. The current regime, where something like that is already in place, is clearly insufficient. Families are being left in the lurch—often, as I said, for a very long time.

I shall not speak for long. I have already spoken about my amendment in the previous debate, so others can refer to Hansard on that, but the principle is that we would have a voluntary, independent person who would serve as an adviser to local authorities where they want to investigate what is going on in home education, but also provide a mediation resource for families so that they do not have to resort to expensive and lengthy processes such as judicial reviews. I was speaking to some judges over lunch last week who said that there is a massive waiting list in the courts. Why should we add to that through the Bill? Instead, we should provide an independent means by which issues can be resolved, such as the one I described here in London and elsewhere.

That is why I tabled Amendment 118, but I support the idea captured in Amendment 74 that there should be recognition that home education itself is not a crime or anything negative; in fact, it is positive for society. I think the noble Lord, Lord Soley, would agree on that point, so let us make sure that those hard-working, hard-pressed officials who are trying to work with home educators truly understand that in law.

Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
- Hansard - - - Excerpts

My Lords, in the debate on the last group, I completely forgot to say thank you to the Minister, who is not in her place at the moment, for meeting me not once but twice. She also met two home educators, and I like to think that that influenced the amendments. I have never had as many emails and contacts as I have had on home education, so it would be very good if the Bill’s changes could be expanded to include the concerns of those people.

Baroness Penn Portrait Baroness Penn (Con)
- Hansard - - - Excerpts

Did the noble Lord, Lord Hacking, want to speak to his amendments in this group?

Lord Hacking Portrait Lord Hacking (Lab)
- Hansard - - - Excerpts

I thank the noble Baroness very much. The noble Lord, Lord Lucas, was giving me a signal from the other side of the Chamber, and I was wondering what it was, but now I know, and I am very grateful for knowing.

I must start with an apology to the whole House for the massive number of manuscript amendments tabled by me to remove, one by one, all the clauses in Parts 3 and 4. This was a mistake by me. When I went to the Legislation Office this morning, I said, “Can I table a simple amendment that runs on the lines ‘leave out Parts 3 and 4’?” I was told it could not be done that way, but only by individually asking for each clause to be left out of the Bill. I should have realised that I needed only to give one example of my proposal, and then your Lordships would not have received this massive number of manuscript amendments. For that, I again apologise.

I should also say that I have not, save for one occasion, which I will come to in a moment, spoken so far on the Bill. I sat through parts of Second Reading and many of the sittings in Committee, but I did not intervene. The one exception was in Committee, when the Clock of our House was stuck at 10 minutes to 3 pm. I thought a literary comment could be brought into the Bill’s proceedings and I reminded the Committee of Rupert Brooke’s poem, “The Old Vicarage, Grantchester”, which ends with a reference to whether the village church clock in Grantchester was still standing “at ten to three” and was there “honey still for tea”. That was my little contribution as a matter of literature on a Bill which, after all, is to do with education.

I have thought very carefully, particularly last weekend, and concluded that, in the interests of the whole House, Parts 3 and 4 should be removed, not as a wrecking amendment but as a constructive one, so that the provisions in Parts 3 and 4 can properly be looked through and thought about. I am supported in that view by my noble friend Lord Grocott, who said at the beginning of the debate that the Bill is beyond repair. The Opposition Chief Whip, the noble Lord, Lord Kennedy, said that the Bill is in a very bad state. That supports my general proposition, that the entirety of Parts 3 and 4 should be removed.

In making this proposal to the House, I am not denying that the many improvements that noble Lords have added should be considered. As part of a reconsideration of this Bill, those improvements might well find themselves in it. I recognised at the weekend that a new broom needs to be taken to the whole of Parts 3 and 4.

Coming back to this House after an absence of 22 years, one is struck by the increasing disease in all our Bills of what I would call particularisation. If I have invented that word, I apologise, particularly to the editors of Hansard. I refer to the ever-increasing perceived need to place everything in the Bill, to the point where our Bills are becoming more detailed and more complicated—and pretty incomprehensible. We seem to think that our job is done when the Bill passes and have insufficient thought for the users of our Bills. Look, for example, in the previous Session, at the police Act, the health Act, or the Nationality and Borders Act, and think of those who must enforce them—police officers for the police Act, health workers for the health Act, and customs officers for the Nationality and Borders Act, to say nothing of the tasks that are thrown up to judges and lawyers who interpret the terms of our Bills.

This Bill, in its present form, has no fewer than 40 pages of obligations on home schooling and local authorities. This is a vast section of the Bill, and it is those 40 pages that I ask your Lordships to reconsider. It is as though someone in the Department for Education has been thinking of everything under the sun—and, I must add, the moon—which can be put into this Bill, the result being these 40 pages. This must come to an end.

I now come to a problem that was entirely new to me. I met the five home-schooling mothers, several of whom are listening to this debate. As the Minister may remember, I introduced three of them to the Ministers when we were in Committee, the noble Baronesses, Lady Barran and Lady Penn, who kindly had a word with them about their concerns, although it was only brief. I am not denying that a lot of noble Lords have expressed a concern and I am not at all deriding all the work that has been put into the Bill by noble Lords.

When you come back to this House after a long time, you also have a freshness when looking at the issues. In this case, I looked at the Education Act 1944, a very important social Act brought in under Rab Butler, later to become Lord Butler of Saffron Walden. I also looked at the more recent Education Act 1996. I have several cited cases, one in 1980, when Lord Donaldson presided, and one in 1985, when the noble and learned Lord, Lord Woolf, presided, for which they each provided further help and guidance over the application of the then provisions. As recently as 2019, the Department for Education issued statutory guidance. I am not going to read the terms of those two Acts or the statutory guidance. Suffice it to say that for both Acts, the recent statutory guidance gave clear support for home schooling, and little interference.

What then has gone wrong? It appears—I emphasise that word—that education officers in a few powerful local authorities have set their face against home schooling, believing that pupils should be at the school with which they were provided. The noble Lord, Lord Lucas, spoke of abusive behaviour by certain local authorities. I emphasise “appears” because the Minister, when I spoke to her, was strongly of the view that this was not the right interpretation. However, we have heard a different view from the noble Lord, Lord Lucas. Therefore, why have these provisions gone into the Bill? This is quite different from the stance taken in 1944 and 1996. It appears that the views of those education officers in a limited number of boroughs—I will not name the boroughs here but will in a meeting with the Minister—have wrongly persuaded the Government to bring in the Bill in the way that we find it.

I have already told the Minister that I will not divide the House and that remains my position. The Minister has kindly agreed to see me and some of the concerned home-schooling mothers and their advisers.

Finally, I ask the Minister not to forget the World War I poets. I could name them, as I did just now in a conversation with the noble Baroness, Lady Barran, but I just leave that as a final thought among the Ministers. I hope that she will not neglect those poets, and the literature that they produced, when she sums up.

Baroness Penn Portrait Baroness Penn (Con)
- Hansard - - - Excerpts

My Lords, I will start with Amendments 74 and 75, tabled by my noble friend Lord Lucas. The law is clear that parents have a right to educate their children at home, and local authorities should already be working collaboratively with parents to ensure the best outcome for the child. We are keen to ensure that home-educating parents, and local authorities, are fully supported in ensuring that the education received at home is suitable. Therefore, as my noble friend Lady Barran said, as part of the implementation of the Bill we will be reviewing our existing guidance and publishing new statutory guidance for local authorities on their “children not in school” responsibilities, which will include advice on how they should discharge their new support duty.

As my noble friend said, we will develop this collaboratively, prior to public consultation, with the new implementation forum we are establishing of local authorities, home educators and safeguarding partners to support the introduction of the registers, ensure the system works for everyone and that parents have the support that they need. As I think my noble friend acknowledged, statutory guidance is the appropriate medium to outline best-practice examples of how local authorities and home-educating parents can engage positively to achieve the best outcome for the child, while also encouraging local authorities to maintain a consistent approach.
In addition, the registers will help local authorities and the Department for Education to identify where decisions to home educate are in response to failures by particular institutions, perhaps in relation to special educational needs provision or bullying, and where those issues are common or recurring. That would allow for targeted action to be taken to resolve the underlying issues and improve education provision overall.
I think that is also relevant as I turn to Amendments 76 and 79 from the noble Baroness, Lady Brinton, and the noble Lord, Lord Hunt of Kings Heath. I reassure noble Lords that local authorities are already legally required to take into account all relevant factors, including the views of the child or their parent, where known, when making decisions and are able to consult experts, such as a child’s doctor or social worker, when they consider it appropriate to do so in the context of the individual case.
Similarly, on Amendment 84 from the noble Lord Storey, all local authorities should already have the in-house expertise to provide suitable support to children not in school. In most cases they will have an elective home education lead in place but if they do not, they can and should appoint a suitably qualified person.
As I have referred to previously, the new statutory guidance will set out clearly what factors local authorities should take into account when discharging their new support duty. This may include the types of experts it may be appropriate for local authorities to consult and factors they should consider when determining how best to respond to a request for support.
Turning to Amendments 77 and 78, we of course want home-educated children to be able to access exams like their counterparts in schools. For many home-educated children, finding an exam centre is not a problem. Candidates use private exam centres or approach schools and colleges to arrange to sit exams with them. A new database run by the Joint Council for Qualifications now enables candidates to locate the nearest centre available to sit their GCSE, AS or A-level exams. Where parents or children are not able to make their own arrangements, local authorities would already be able to provide support with this as a way of discharging their duty. However, the Government do not believe that setting out in law exactly how the support duty should be discharged, as proposed by my noble friend Lord Lucas, would be the best outcome for home-educated children. Decisions are best made locally, reflecting both what the parents want in terms of support and the local authority’s assessment of the needs of the child and the wider needs of families in the area.
On the issue of cost, as my noble friend the Minister has said before, parents electing to home educate accept full responsibility for their child’s education and its cost. Under the duty, local authorities will consider requests for different types of support, again taking into account individual and wider circumstances. Support with exam fees would already be a valid way of discharging the duty, and we could outline it as an example in the new statutory guidance depending on the outcome of the collaboration and the public consultation.
Lord Knight of Weymouth Portrait Lord Knight of Weymouth (Lab)
- Hansard - - - Excerpts

I am grateful to the noble Baroness for giving way. If she has any kind of assessment of the cost of requiring local authorities to cover that cost for parents, it would be really useful to share that with noble Lords taking part in the debate.

Baroness Penn Portrait Baroness Penn (Con)
- Hansard - - - Excerpts

I am not sure whether that assessment has been made. If it has, I will be happy to share it. As we have said several times, there are at least two more stages to go on the guidance. One is a collaborative process to produce the draft guidance, and then a consultation process. There are plenty of opportunities as we go along to look at it—for example, whether exam costs would be included in the statutory guidance. I will find out whether we have that assessment and, if we do, I will share it.

I turn to Amendment 118 from my noble friend Lord Wei. As we have already discussed, several routes for complaint already exist for home-educating parents. But, as my noble friend said in response to the previous group, we have heard concerns raised by noble Lords about whether the different current routes of complaint are sufficient. We are also continuing to consider what more we can do to support home-educating parents and strengthen independent oversight of local authorities, such as exploring alternative routes of complaint.

Finally, I turn to Amendments 97ZZA to 100F from the noble Lord, Lord Hacking, which would remove Clauses 53 to 66 from the Bill. The overarching purpose of Clauses 53 to 56 is to improve the consistency of attendance support pupils and families receive to help pupils attend their school regularly. These clauses are an important part of the Government’s overall approach to providing more consistent support for pupils and families in order to help children attend school before legal intervention is considered. Clauses 57 to 66 concern the regulation of independent educational institutions and help us to ensure that all children receive a safe and suitably broad education. Extending the registration requirement and improving investigatory powers will ensure that full-time settings serving children of compulsory school age are regulated. Other measures improve the regulatory regime for independent schools, including by creating a power to suspend the registration of a school because pupils are at risk of harm.

I heard the noble Lord’s request for a meeting and my noble friend is very happy to do that because, as I think she has been at been at pains to stress throughout the passage of the Bill, we want to make sure that we engage with a broad range of voices from the home-education community to be clear about what we are aiming to do with the Bill. It is not at all about reducing or interfering with the right to home education, but just ensuring that we have the proper processes in place to make sure that the best interests of all children are protected while doing so.

Lord Storey Portrait Lord Storey (LD)
- Hansard - - - Excerpts

Before the Minister finishes, will she respond to Amendment 77 from my noble friend Lady Garden, about examination costs? Maybe she will have that in mind that when she meets these home educators, as it might be an issue to talk to them about.

Baroness Penn Portrait Baroness Penn (Con)
- Hansard - - - Excerpts

I believe I responded about examination costs. In fact, I had an intervention from the noble Lord, Lord Knight, on it. One of the things I said to him was that in the statutory guidance we are seeking to create, we will look at the support duty. We are looking to work collaboratively with local authorities and home educators to hear all those different views in order to help us co-create that guidance. Then we will also consult on it. We are keen to ensure that we hear those views as part of that process.

I hope that my noble friend Lord Lucas will feel able to withdraw his amendment and other noble Lords will not press theirs.

Lord Hacking Portrait Lord Hacking (Lab)
- Hansard - - - Excerpts

Before the Minister sits down, will she receive from me great gratitude for her willingness and that of her fellow Minister to see home schoolers, several of whom are in the House this evening, and those advising them? They have helped a lot and I hope they will help the Ministers a lot too.

Baroness Penn Portrait Baroness Penn (Con)
- Hansard - - - Excerpts

That is very much appreciated. I also pass on to my noble friend the Minister the thanks of the noble Baroness, Lady Jones, for engaging with home educators. I emphasise that we see that as a very important part of the process for the Bill.

Lord Lucas Portrait Lord Lucas (Con)
- Hansard - - - Excerpts

My Lords, I am glad to hear that the Government continue to give thought to the question of an independent appeal. The current system, where the first appeal goes to the local authority, is obviously right; you want to resolve as much as you can without going outside. But, beyond that, the idea that the Secretary of State provides a satisfactory route of appeal really does not stand up. First, there are far too many relationships between the Department for Education and local authorities to allow independence. Secondly, I believe I am right—although the Minister may contradict me if she wishes—that, in the entire history of this right of appeal, the Secretary of State has not granted any, but he has come down in favour of the local authority on every single occasion. That may or may not be true—as I say, I hope the Box will be able to confirm it when we return to this issue in two groups’ time—but that there should be an independent appeal is important.

My noble friend Lord Wei’s proposal for an ombudsman is one that should be considered, although there are others. One way or another, there should be a point where someone truly independent casts their eye over what the home educator is doing and how the local authority has handled it and says either, “Yes, come on: get into line,” or “No, I can see here that the local authority has pushed things too far and ought to take a step or two back.” That would make a big contribution to keeping the relationship straight between home educators and local authorities.

I think it was the noble Lord, Lord Storey—I apologise if it was not—who said earlier that this bit of the Bill meant that local authorities had to give support. I can see nothing that makes it compulsory. I hope we will get the Government to give this a budget so there is an indication that support ought to be given, but at the moment I do not believe there is anything compulsory about it.

My noble friend Lady Penn said local authorities could consult a doctor when they consider it appropriate. I think the right balance is that the home educators ought to be able to able to evince that evidence when they consider it appropriate too, and the local authority ought then to pay attention to it. From cases that I have seen, I rather doubt that that is the arrangement at the moment. However, as my noble friend asked, I beg leave to withdraw the amendment.

Amendment 74 withdrawn.
Amendments 75 to 79 not moved.
Amendment 80
Moved by
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 Portrait Lord Hunt of Kings Heath (Lab)
- Hansard - - - Excerpts

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.

My Amendment 79 would ensure that local authorities, in the case of a child or young person with special educational needs, must have regard to a number of matters that I set out in the amendment: first,
“the views, wishes and feelings of the child and his or her parent, or of the young person”;
“the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned”;
“the information and support necessary to enable participation”
by the parents or child in those decisions; and, finally,
“the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.”
The amendment seeks to emphasise to local authorities that, in the duties they are given under this part, they should take into account the special circumstances particularly of young people with special educational needs and the reason why they may have been taken out of school for home education, which is often that they have felt that the school has failed to give those young people the support that they need. I know my noble friend is sympathetic to the issues here.
My other amendments relate to the guidance to be issued by the Secretary of State to local authorities in the exercise of their functions. Helpfully, the Minister has said that that guidance will be informed by working with local authorities, home educators and other stakeholders and will be subject to public consultation, which is very helpful, but special consideration needs to be given to children with special educational needs. I am proposing that, accompanying the guidance, there should be a code of practice clearly establishing how local authorities should take a holistic approach to school attendance issues, particularly embracing the mental health of the child affected.
I also think the guidance should not simply be Secretary of State guidance; it needs the backing of being introduced as a regulation through the affirmative process. It is right and proper that Parliament should at least have some kind of scrutiny, because the guidance will be so important to making these measures operate effectively.
At heart, what is needed—and I very much approach what Square Peg and Not Fine in School have said—is a compassion-based response from local authorities and schools that recognises that mental health is a legitimate reason for authorised absence in some cases. Many of these young people have very special needs. They may have a disability, chronic illness or medical needs or experience mental ill health.
I have spent most of my life in and around the health service, and we know that current mental health services for young people are, frankly, grossly inadequate. The long waits and the scandal of in-patient care hundreds of miles from home are indications of the issue that we face. I know the Government have put money in and are anxious to see improvements, but the fact is that on the ground helping young people to get access to mental health services can be very challenging. All I am asking is that in the guidance, and in the code that I am suggesting, there is a clear indication to local authorities that in those circumstances they have to be sympathetic to the needs of a child and their parents if they are receiving health treatment and there are issues about attendance. I beg to move.
Lord Lucas Portrait Lord Lucas (Con)
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My Lords, I have Amendment 82 in this group, asking that local authorities give reasons when they choose to deviate from guidance. I hope this will be dealt with in guidance rather than in the Bill, but it is important that both local authorities and home educators come to regard the guidance as something to which they can resort for support. Therefore, when local authorities need to go outside the guidance, as they may, that should be clearly explained.

I very much support the amendments that the noble Lord, Lord Hunt of Kings Heath, has proposed, in particular Amendment 81. It is important that there is a strong set of guidance around attendance. This is a change of structure for local authorities. They are taking on much more of a responsibility that was formerly shared with schools. We will need them to reach deeper into the reasons for non-attendance and to deploy other strengths that local authorities have to deal with those reasons, going well beyond the usual educational provision. To have a set of guidance that enables them to do that well and to have ways of sharing good experience will be really helpful. In the next group we come to the punitive side of this. We really ought to be strong in making sure that as few families as possible get tipped into that, and guidance seems to be a clear part of that.

I have one question on government Amendment 99, which applies to regulations passed

“before the end of the session of Parliament in which the Schools Act 2022 is passed.”

I wonder whether it should refer just to the first passing of the guidance. Given the extended timescale on this Bill and the consultations we hope to have, it may run beyond that. The Government are really saying that they do not want this to last for ever. It should cover the first issuing of regulations, whenever that may happen to occur, and we should not have to rush things just because we have this in the Bill. If it is passed next year, will it still be the Schools Act 2022 or will it be the Schools Act 2023?

Lord Addington Portrait Lord Addington (LD)
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My Lords, I support the thrust of these amendments. They follow on from my noble friend Lady Brinton’s amendment on the fact that specialist guidance and help will be needed. The education sector is going into an area where it does not expect to have the expertise readily at hand. It may have to go and find it, and the parents are often the people who have done the finding. I hope that, when the Minister comes to answer, the Government will give us a little insight into how they expect to handle this process. We are talking about often very seldom-occurring incidents, which means that we cannot expect there to be group memory. These are incidents occurring not only infrequently but over long periods of time; certain combinations of events come through. Stress tends to trigger mental health incidents. If a child happens to have been failing at school, they and their parents will have more stress. It does not take a genius to take it to the next step. I hope the Minister will give us an idea of the Government’s thinking and how they are proposing to address these very real concerns.

Lord Wei Portrait Lord Wei (Con)
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My Lords, I will speak to Amendment 119, and am generally supportive of a lot of the other amendments relating to mental health. Amendment 119 is conceived as a means to cut through what I believe will be quite a lot of court cases and judicial reviews. As we have discussed on this grouping, there will be instances in which local authorities make a judgment about home education, whether in the case of mental health or involving families with a particular faith or philosophy around education. My concern is that, even if the Government in their own impact report feel that they have satisfied all human rights obligations—bear in mind that concerns are raised in that report that Articles 8 and 9 will be intruded or infringed upon to some degree—how can we be so sure that the local official in the local authority has the expertise to make a judgment? In some cases, given the context or circumstances, they may go beyond what is right in terms of human rights. This may lead in turn to many judicial reviews. I believe that in the home education community there are already attempts to start raising the funds for such action. That will be costly for all concerned. It may delay for many years the implementation of what the Government are trying to do here, so I ask the Minister to look at this whole area.

A lot hinges on the composition of this consultation committee, review committee or implementation committee. In the interests of transparency, I would love to know the criteria for inviting those to join such a group and to have reassurance as to whether they will be preselected to be favourable towards the Government’s current views or will be genuinely independent members with genuine expertise in some of the really sensitive matters that will be dealt with as the Government seek to implement this.

I can tell from the House’s view that, from my point of view, this part of this campaign must come to an end. I will not seek to divide the House any further today, but I know that there will be many discussions in my party over the summer, whoever the two candidates for the Conservative Party leadership are. With all due respect, I believe this is not a Conservative Bill. Our party is about many things but really it is about letting people get on with their lives, and many aspects of the Bill currently do not make me feel that it is following that principle. I think many home educators will write to their MPs and come along to various hustings around the country to make that view known to those candidates. We should probably ask them what they think of this Bill so that we can get an early view as to what will happen to it in the autumn.

I would be pleased to know more from my noble friend the Minister how the guidance provided will be consulted on, including with those of us who have spoken in this debate. Clearly, a lot hinges and rides on that.

I will stop there, but I think my noble friend the Minister and the Government have heard strongly the views of many in this Chamber, including those such as me who do not believe the Bill is a great idea. It is now up to them to see if they can get it through the Commons and into statute and, in so doing, make sure they look after the welfare—as I believe they claim to do—of home educators up and down this country.

Baroness Chapman of Darlington Portrait Baroness Chapman of Darlington (Lab)
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I will not speak to the Tory leadership election.

We support the approach suggested in many of the amendments in this group. To pluck one out of the air at random, Amendment 81 tabled by my noble friends Lord Hunt and Lord Knight, suggesting a code of practice—which is really just another way of sharing best practice—is a positive suggestion. We recognise completely that poor attendance can be a symptom of a much deeper problem and that schools often take a holistic approach already. The amendment suggests that families and organisations with experience of overcoming barriers to attendance be included in the Government’s thinking. It is a very good idea and seems to be the right approach. Even if we do not divide the House on this today, it is a good suggestion for the Government to consider this code of practice further.

Baroness Penn Portrait Baroness Penn (Con)
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I thank the noble Lord, Lord Hunt of Kings Heath, for hotfooting it over here from the Grand Committee. I also thank him and my noble friend Lord Lucas for their Amendments 80, 82 and 83, which I will speak to together.

I mentioned earlier that the Government are already seeking the power for the Secretary of State to give local authorities in England statutory guidance that they must have regard to. Local authorities will not be able to diverge from it unless there is a coherent reason to do so.

It is expected that the statutory guidance will be used to set out operational and day-to-day processes for how local authorities should implement their new duties under new Sections 436B to 436G. There is a risk that placing this level of detailed guidance in legislation could result in guidance for local authorities becoming more rigid and less able to be adjusted to better support operational need. For example, we intend to outline in the guidance how local authorities should work with home educating families, but it may be that there are circumstances where a local authority needs to diverge from these guidelines, such as where a home educating family expresses particular preferences on how they should be engaged with based on their specific circumstances. We think that level of flexibility is important, but I assure noble Lords that if the department received reports that local authorities were not following the guidance, that would be followed up as a matter of urgency.
As mentioned, the guidance will be developed in close collaboration with local authorities, home educators and safeguarding partners. I reassure my noble friend Lord Wei that we will ensure that we engage a wide range of people in that process. We think that is the appropriate level of scrutiny, given the likely operational and technical nature of the content.
I thank the noble Lord, Lord Hunt, for Amendment 81. The department has recently published new attendance guidance, Working Together to Improve School Attendance, which we will make statutory through this Bill. This guidance is clear that local authorities and schools should work together, and with pupils and families, to understand the barriers to attendance and to put measures in place to support regular attendance. As the noble Baroness, Lady Chapman, said, there is already really good practice in schools, taking a holistic look at this. To elaborate slightly further, under the new guidance schools are expected to support pupils with health conditions by developing a whole-school culture that promotes the benefits of attendance. While recognising the interplay between wider school strategies on health and well-being, schools are also expected to have sensitive conversations with pupils and families with health conditions. These conversations should avoid stigmatising pupils and parents and instead work with them to understand how they feel and what they think would help improve their attendance.
Additionally, schools are expected to ensure that pastoral care is in place for pupils who need it and refer pupils to support from other services and partners, such as the local authority and health services, in a timely manner. We heard from the noble Lord about the availability of those wider support services. We have discussed previously the need to improve the availability of those, and steps are under way to do so. We acknowledge that there is much more to do in that space.
The guidance also sets out that, for local authorities, this means working with schools to identify pupils with barriers to attendance at an earlier stage, putting in place appropriate supportive interventions in collaboration with other services and partners, including mental health services. I hope that gives noble Lords some reassurance.
On Amendment 119 from my noble friend Lord Wei on the human rights implications of the children not in school measures, I reassure him that a full and thorough assessment on the compatibility of the measures in the Bill with the European Convention on Human Rights has been undertaken and published by the Government. This assessment was considered by the Joint Committee on Human Rights, which did not raise any concerns about the Bill’s compatibility with the convention. Parliamentary process already affords adequate opportunity for scrutiny, and it is right that scrutiny on whether the provisions strike the right balance of individual rights takes place here in Parliament before the Bill receives Royal Assent rather than afterwards, as this amendment seeks to achieve.
On the question about Royal Assent, we understand that if the Bill ends up not getting Royal Assent until 2023 then references to the “Schools Act 2022” will automatically be updated to the “Schools Act 2023”. I will double check that that is the case, but I am sure that, if any tidying up needs to take place, we will do so. My noble friend is right that the intention of the government amendments, which I am about to come to, is to have that procedure in place for the first set of these regulations.
I move on to those amendments and the importance of scrutiny, which is a common thread through all the government amendments. I and my noble friend Lady Barran have listened to concerns, and I hope that through Amendment 86, in the name of my noble friend, I can offer some reassurance that Parliament will be afforded ample opportunity to scrutinise the regulations to be made in relation to the registers ahead of their implementation. This amendment would ensure that the regulations prescribing information to be recorded, how registers are maintained and what information is shared with the Secretary of State are subject to the affirmative procedure the first time they are made, and the regulations prescribing those with whom information can be shared subject to the affirmative procedure each time. This will provide for greater parliamentary scrutiny at the points at which there will be the most impact, while avoiding disproportionate checks and balances on technical details that could, in turn, delay or disrupt the running of the registers.
Amendments 98 and 99, in the name of my noble friend, make corrections to Clause 60. Amendment 99 would permit the Secretary of State to apply legislation that was made before or in the same Session as the Schools Act 2022—or 2023—rather than, as in the clause as currently drafted, before or in the same Session as the Education and Skills Act 2008. This supports the Government’s objective of ensuring that all children receive a safe and suitable education by ensuring that independent educational institutions can be brought fully into the purview of other legislation which applies to independent schools in England.
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 Portrait Lord Hunt of Kings Heath (Lab)
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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 Portrait Baroness Penn (Con)
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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 Portrait Lord Hunt of Kings Heath (Lab)
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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.
Amendments 81 to 85A not moved.
Amendment 86
Moved by
86: Clause 49, page 46, line 8, leave out subsection (3) and insert—(3)“(3) In section 569(2A) (regulations subject to affirmative procedure), for “regulations under section 550ZA(3)(f) or 550ZC(7) may” substitute “—(a)(a) the first regulations under(a), (a) or (a), 436C(1)(c)(1A)(3)(b)(b) the first regulations under(b), section 436F(1)(c)(c) regulations under section(c), 436F(2)(d)(d) regulations under section 550ZA(3)(f), or(e)(e) regulations under section 550ZC(7), may.
“(3) In section 569(2A) (regulations subject to affirmative procedure), for “regulations under section 550ZA(3)(f) or 550ZC(7) may” substitute “—(a) the first regulations under 436C(1)(c), (1A) or (3),(b) the first regulations under section 436F(1),(c) regulations under section 436F(2),(d) regulations under section 550ZA(3)(f), or(e) regulations under section 550ZC(7),may”.”Member's explanatory statement
This amendment would make the first regulations made under section 436C(1)(c), (1A) (as inserted by the amendment in Baroness Barran’s name at clause 49, page 42, line 30) and (3), the first regulations made under section 436F(1) and any regulations under section 436F(2) subject to the affirmative rather than the negative procedure.
Amendment 86 agreed.
Amendments 86A and 86B not moved.
Clause 50: School attendance orders
Amendment 87
Moved by
87: Clause 50, page 48, line 39, leave out from beginning to end of line 1 on page 49 and insert “has repeatedly and without good reason failed to provide the information or substantially all of the information despite clear evidence that they have received the requests.”
Member’s explanatory statement
This amendment is to reserve penalties under this Clause for substantial misbehaviour.
Lord Lucas Portrait Lord Lucas (Con)
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My Lords, in moving this amendment I will also speak to my other amendments in this group. This group is looking at the stage of the process at which penalties start to come in. I feel that the wording of the Bill is at the moment far too hair-trigger. The words that Amendment 87 seeks to replace mean that a local authority must tip a home-educating parent, or a parent, into the school attendance order process if they have failed to provide any scintilla of information. That could be anything; it could just be that they have spelt something wrong or have not got the date right, or whatever, and does not seem appropriate.

I am not sure that the Government will find my wording appropriate either, but we ought to look to soften this to make it clear that for these hard-pressed parents, an ordinary error of forgetfulness or a failure which does not find its roots in opposition or deliberate obfuscation should not be punished immediately. It should be something the local authority should seek to engage with.

I came across one example where the local authority had been corresponding with a good home-educating parent and had decided that it really wanted to see examples of the child’s work. It is one of those arguable questions you come across as to whether the experts’ report that had been provided should have been sufficient. It did not then e-mail the parent to say, “If you continue in this, we will tip you into school attendance orders”. It wrote by snail mail, to an address which was wrong, and made no other reference to it until six months later when the school attendance order appeared. There needs to be a much more active relationship and there should not be things in the Bill which make a lazy relationship between the local authority and parents acceptable. The local authority ought to be working with the parent to get things right.

Amendment 88 seeks to restore the current timescale of 15 days, rather than the 10 days in the Bill. This is the crucial step; it is the point when things get serious. Parents ought to be given a reasonable length of time and 15 days is what is accepted. The Government have argued us out of all sorts of other extensions of timescales, but this one is crucial.

Amendments 90 and 92 come back to the subject of a tribunal, which we have covered. It is really important that the Government do something. I am with the noble Baroness, Lady Brinton, on Amendment 95 in wanting to reduce the maximum prison sentence to three months.

In Amendment 97, I am urging the Government to provide proper funding to local authorities as they take on these additional duties on school attendance. Particularly post Covid, this is clearly a complicated problem with its roots in all sorts of aspects of society. Local authorities ought to be properly supported to get it right and become really effective at helping children to get into school.

I also look forward to the noble Lord, Lord Storey, speaking to Amendment 100. He has put his finger on a really serious thing there.

My Amendment 110 suggests that Ofsted should be able to inspect local authorities on their performance with elective home education and absence. I do not want all these things we have suggested to come into force—it would just be ridiculous to have everything—but we need some structure for oversight of local authorities, so that they feel motivated to improve. Ofsted might be one of the options, so I hope that the Government will keep that under consideration.

I look forward to what other people will have to say on this group and beg to move my Amendment 87.

Earl of Kinnoull Portrait The Deputy Speaker (The Earl of Kinnoull) (CB)
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My Lords, the noble Baroness, Lady Brinton, is participating remotely and I invite her to speak now.

Baroness Brinton Portrait Baroness Brinton (LD) [V]
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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 Portrait Lord Hunt of Kings Heath (Lab)
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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 Portrait Lord Shipley (LD)
- Hansard - - - Excerpts

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.

Lord Storey Portrait Lord Storey (LD)
- Hansard - - - Excerpts

My Lords, I rise to speak to Amendment 100, in my name and the name of my noble friend Lord Shipley. I hoped that we could have spent the same amount of time talking about the most disadvantaged children in our society as we have on home education. These are young people, mainly with special educational needs, from the most deprived communities and from ethnic minorities, who are permanently excluded from school. What we do with some of these children reminds me of Victorian education, to be honest.

If they are lucky, they are put into a pupil referral unit attached to the school, and that is where you get some very high standards. If they are unlucky, they go into an unregistered provider. The horror stories of those unregistered providers are not worth considering, because we as a society would be ashamed of what we were doing to these young people. It is an educational disgrace. I declare an interest as a vice-president of the Local Government Association. I cannot understand why local government is putting these vulnerable children into unregistered provision. This amendment seeks to prevent that.
Having said that, some very good practice goes on, and we need to learn from that. Liverpool Hope University has a wonderful scheme for these young people, working with schools in the Everton area, and there are other examples up and down the country of very good practice. I hope that the Government will give an undertaking to learn from this good practice and ensure that every young person is in that position.
When all these home educators attend the Conservative hustings to choose the leader, what a pity they will not be joined by all the parents of those in alternative provision to try to ensure that changes are made.
I want to briefly comment on some of the other amendments in this group, because they are equally important, particularly Amendment 91 from my noble friend Lord Shipley, Amendment 95 from my noble friend Lady Brinton, Amendment 96 from my noble friend Lord Addington, and Amendment 97ZA from the noble Lord, Lord Hunt. These all, in some ways, look to make school attendance orders more workable and more acceptable for particular groups of children in particular circumstances.
I want to make the point that the most important thing for a child is to attend school, because every day they miss is a day less of education. The way we ensure that children are in school is by the school taking a register so that we know children are in school or we know why they are not. But a very small minority of parents do not comply, for whatever reason. Often it is because they need help and support as well; they are often in the most deprived communities. We need some mechanism to make them realise that attending school is very important, and if we do not have attendance orders, there is precious little else we can do. I do not want us to think that attendance orders are something we should disparage. They are something we should support. But quite rightly the movers of these various amendments are looking at ways that we can make them more effective and more compatible with individual circumstances.
I take the point about knowing about medical conditions—this amendment is hugely important—and whether a child needs to be supported in school. If we do not do that, again, it creates a circle in which the child might suffer, which we do not want to see.
I hope the Minister will reply supportively to my Amendment 100, and also take on board some of these very important amendments to make school attendance orders reflective of the situation that people find themselves in.
Lord Mendelsohn Portrait Lord Mendelsohn (Lab)
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My Lords, I will speak to Amendments 97A, 118J and 118K.

We have to remind ourselves that the issue of unregistered school settings and the claim that some people are home schooling in order to send children to such settings is a problem that we have long had. Many people here will remember that Section 96 of the Education and Skills Act 2008 was established specifically to make sure that such settings were deemed unlawful. Unfortunately, we found that the law was so difficult to enforce that we have had a massive increase in the number of unregistered school settings, creating much more of the problem that we have had to deal with. Indeed, there have been only three prosecutions, and the first one took 10 years to take place. The number of schools that have been reported to Ofsted exceeds, I believe, a thousand. Hundreds have been identified by Ofsted but have been very difficult to deal with. Enforcement has been so poor that many schools deregistered to unregistered schools to avoid any form of regulation because they felt that they could operate in that way.

The position has been very clear. Departmental advice for collaborative working between the Department for Education, Ofsted and local authorities in March 2018 stated:

“Over recent times, we have seen a rise in the number of institutions operating outside the regulatory regime as unregistered independent schools; this involves a criminal offence and conduct that may be putting children at risk of harm, denying them a suitable education, and limiting their life chances. Tackling unregistered independent schools is a priority—and one that involves joint working and collaboration.”

Unfortunately, even in those times it was very clear that the provisions available to Ofsted, local authorities and the Government were very weak. That is why these measures in the Bill have been so warmly welcomed.

However, there are issues on which I am still trying to probe the Government and encourage them to think of creative ways in which to draft measures. It would be a tragedy that, 15 years after we thought we had solved a problem that had existed for decades beforehand, we were in the same position, in that the provisions were insufficiently flexible and strong to make sure that the law is properly enforced and that that which is meant to be outlawed is so done; and that if it were seen to be unable to be enforced effectively, we would have to wait another 15 years in order to do that.

Amendment 97A tries to deal with those who are enablers of the use of unregistered educational settings and who do not take a formal role in the structure of that educational setting. Such people may provide a facility or other forms of support, be that a location or funding that goes towards individuals who are providing these skills, but they structure it in a way that does not make them culpable in any way as an educational institution. I believe that the Government are missing a trick if they do not deal with those people who help these things continue.

Amendment 118J seeks to give Ofsted a more general, anti-avoidance power. This would allow it to join the dots in situations where its intelligence and information, in matters raised by a parent or parents in this situation, make it clear that it can take a broader view of how these institutions may well be operating or trying to operate once their structure has been changed to try to find loopholes in the law.

Lastly, Amendment 118K would establish a process to review the Act and its operation and to encourage reporting to the House, particularly on this measure—I suspect there may well be a clumsy error in the drafting, for which I apologise in advance. The intent is to try to focus on this area so that the expertise and views of local authorities and others involved in education, especially Ofsted, can be collated by the department so that we can review whether or not these measures are being successfully enforced and we are achieving the outcomes that we so desperately want for the safeguarding of children.

Obviously, I will not push these amendments to a vote. They are there to try to encourage the Government to think again as the Bill goes through its passage in another place on how additional measures could be introduced to make sure that we make this the final time we have to legislate on these issues.

Baroness Wilcox of Newport Portrait Baroness Wilcox of Newport (Lab)
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The amendments in this group have attendance at their core, and nothing is more important. In addition to being directly related to physical health, the attendance of learners in school is affected by well-being and mental health, and by attitudes towards learning and schooling. My noble friend Lord Hunt and the noble Lord, Lord Storey, made some important points regarding children with medical conditions. The interrelationship between attendance and general well-being is considered so strong that attendance has often been taken as a measure for well-being in previous data collection. We know that attendance has a strong impact on learner outcomes, standards and progression. I can tell you from first-hand experience that examination outcomes strongly correlate to attendance rates.

Amendments 118J and 118K, proposed by my noble friend Lord Mendelsohn, seek to deal with the current gaps in legislation, addressing important issues surrounding attendance and its promotion by educational institutions, and would require a review of any avoidance of the legislation as it develops, which we support.

Baroness Barran Portrait Baroness Barran (Con)
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My Lords, the fourth group of amendments relates to school attendance orders and independent educational institutions. I thank my noble friend Lord Lucas and the noble Baroness, Lady Brinton, for Amendments 87 and 89. However, we are concerned that these could work directly against the child’s best interests by increasing the time that a child could spend in potentially unsuitable education. We do not regard the issuing of a preliminary notice as an extreme penalty that warrants such justifications for issuance. We believe that a local authority should be able and required to take steps to determine the suitability of education being provided where there has been insufficient or inaccurate information given.

The local authority is already legally required to consider all relevant factors in determining whether it is expedient for a child to attend school, including whether it is in the child’s best interests. I hope that reassures the noble Lord, Lord Shipley, who tabled Amendment 91. To reiterate, “expedient” in this context means that it must be

“advantageous; fit, proper, or suitable to the circumstances of the case”

for the child to attend school. Of course, as the noble Baroness, Lady Wilcox, said, it will almost always be in the child’s best interests to attend school if they are not receiving suitable education, but there may be cases in which it could be argued that another solution would be better for the child—for example, if the child is physically or mentally too unwell to attend school.

On Amendment 96, tabled by the noble Baroness, Lady Brinton, we have been clear through our recently published school attendance guidance that local authorities are expected to work closely with other services and partners, such as health services. Paragraph 79 of the guidance—I am worried that the noble Baroness is at home saying to her screen, “But who gets to paragraph 79?”, but I know that she will get to it—says that local authorities are expected to

“Build strong relationships with a range of services and partners that can help with specific barriers to attendance and how to access them.”

It then lists services that local authorities are expected to work with, which include health, children’s social care and youth justice services, to which the noble Baroness referred. I know she is concerned about what happens in cases where the guidance is not followed, and I am happy to write to her to set out our response to those situations in more detail.

As already mentioned, government Amendments 71 and 72 would prevent the school attendance order process being triggered where parents simply do not know the information required.

With regard to Amendment 88, tabled by my noble friend Lord Lucas, I must reiterate the importance of local authorities remedying the situation for any child who is not receiving a suitable education, in the shortest time possible. The introduction and reduction of timeframes in the school attendance order process will help achieve this. However, I remind the House that, as my noble friend mentioned in earlier debates, even with the timeframes set out in the Bill, a child could still potentially be without suitable education for a period of at least 51 days, without extending this any further.

In relation to Amendment 90, in the names of my noble friend Lord Lucas and the right reverend Prelate the Bishop of St Albans, and Amendment 92 in the name of my noble friend Lord Lucas, the preliminary notice provides parents with the opportunity to evidence that their child is in receipt of a suitable education. Where they have the evidence, they should provide it to the local authority. If parents could appeal to the First-tier Tribunal at this stage, they would still need to provide evidence that their child is in receipt of a suitable education to enable the tribunal to come to a view. This would result in duplication or additional burdens.
There are existing options for parents who want to challenge a school attendance order, and we will outline them in our updated guidance for parents, and make them clear in the new statutory guidance for local authorities, including that they should follow the recommendations of the Local Government Ombudsman. As I mentioned earlier, we are also exploring how we might further strengthen independent oversight of local authorities.
On Amendment 95, I want to reassure the noble Baroness, Lady Brinton, that the reference to a maximum custodial penalty of 51 weeks is standard drafting practice. Where the Bill refers to a maximum custodial penalty of 51 weeks, this will be read as three months’ imprisonment until the commencement of Section 281 of the Criminal Justice Act 2003, for which there are no present plans—obviously, I cannot speak for future Governments. This aligns the offence with that of knowingly allowing a school pupil to fail to attend school.
On Amendments 93A, 95A and 95B, tabled by the noble Baroness, Lady Jones, I hope that the government amendments and the points raised today sufficiently address her concerns regarding Clauses 50, 51 and 52.
I again thank my noble friend Lord Lucas for Amendment 97. In developing the new local authority responsibilities on attendance we published a full new burdens assessment, and we expect the running costs of attendance services to remain affordable within existing budgets. The Secretary of State intends to remove the current restriction on the use of money collected through penalty notices to ensure that it can be used for better support to remove the underlying barriers to attendance. We developed local authority obligations under Clause 53 in collaboration with local authority stakeholders, and 94% of local authority staff supported the measures when publicly consulted on them.
In response to Amendment 97ZA, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Hollins—I thank her for contacting me today about the amendment—schools are already required to record an absence as authorised where pupils cannot attend school due to sickness, both physical and mental health-related. The department’s Working Together to Improve School Attendance guidance, which the Bill would make statutory, sets out that medical evidence should be requested before recording an absence as authorised only when a school has a genuine and reasonable doubt, as the noble Lord quoted, about the authenticity of the illness.
The noble Lord made powerful points—as would have the noble Baroness, had she been here—particularly in relation in children with autism. The Government are committed to continuing to work to support those children to receive a suitable education, ideally within either mainstream or special schools. Like the noble Lord, I am sure, I have been to visit special schools dedicated to supporting children with autism and know that they are remarkable places. I pay tribute to the staff working in them.
I turn to Amendment 100 in the name of the noble Lord, Lord Storey. The alternative provision statutory guidance is clear that local authorities should not commission alternative provision in settings that meet the criteria of an independent school, but have failed to register, as that is clearly a criminal offence. But I think the point he makes is a wider one.
Lord Storey Portrait Lord Storey (LD)
- Hansard - - - Excerpts

That is the statutory guidance, but what is the Minister’s department doing in relation to those many local authorities which take no notice?

Baroness Barran Portrait Baroness Barran (Con)
- Hansard - - - Excerpts

That was in relation to illegal settings, and we hope that is straightforward. Alternative provision education is delivered in other settings—as the noble Lord has rightly drawn attention to—which do not receive state funding, are not required to register as an independent school, and do not meet, currently, the requirements for registration. The noble Lord is aware, I think, that in the special educational needs and disabilities and alternative provision Green Paper, we made a commitment to strengthening protections for children and young people in unregistered alternative provision settings, so that every placement is safe, offers good-quality education and has clear oversight. If I understand correctly, that is exactly what the noble Lord also aspires to.

I am pleased to report that on 11 July the department issued a call for evidence on the use of unregistered alternative provision settings. Again, I place on record my thanks to the noble Lord for his insistence and persistence on this very important issue, which is important, as he pointed out, for children whose parents may not have the confidence to challenge the system. The information collected will help us find the right solution that addresses these concerns effectively and proportionately.

I thank the noble Lord, Lord Mendelsohn, for his Amendments 97A, 118J and 118K, and for the very constructive way that we have been able to work together. I hope we can continue to work together to address the points that he has raised. We have worked with Ofsted to develop the package of measures to investigate illegal schools, to ensure that we can take effective action against unlawful behaviour. Since Ofsted started investigating unregistered schools in 2016, we have gained a much better understanding of how to tackle this sector. There have been six successful prosecutions. The number of cases investigated reflects an increase in efforts to investigate. The actual number of unregistered schools, as the noble Lord knows, is unknown, sadly, but the measures in this Bill have been developed—working together with Ofsted—to address the key issues in the sector, which the noble Lord has rightly drawn attention to.

We believe that Amendment 97A is not necessary as we can already prosecute companies and charities which are operating schools unlawfully. We already inform the Charity Commission when charities are prosecuted. Education and childcare behaviour orders will allow courts to prevent individuals from continuing to operate from buildings that have been used for illegal schools. When we were developing the measures, we also looked at whether it would be appropriate to create measures which would allow action against landlords, in the way that the noble Lord’s amendment has set out. This is a very complex area, and we concluded that education and childcare behaviour orders, which could prevent those convicted of an offence from continuing to operate from a given site, were the more appropriate mechanism.

Amendment 118J replicates powers that Ofsted already has. Genuine part-time settings are not under a statutory obligation to register, so would not be caught by the proposed amendment. There is ongoing engagement between the department, Ofsted and other stakeholders on the effectiveness of measures to tackle unregistered schools. The effectiveness of the legislation will be kept under review. The need for accountability suggested by Amendment 118K is, we believe, best secured through the annual report that Ofsted presents to Parliament.

Finally, I turn to Amendment 110, in the name of my noble friend Lord Lucas. We believe that this amendment is unnecessary as existing provisions—specifically in Section 136 of the Education and Inspections Act 2006 and in Clause 65 of the Bill—already ensure that new local authority education functions under the Bill will be within scope of Ofsted’s inspection powers. I therefore ask my noble friend Lord Lucas to withdraw Amendment 87 and hope that other noble Lords will not move theirs.

Lord Lucas Portrait Lord Lucas (Con)
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My Lords, I am grateful to my noble friend for that extensive explanation and her many good answers. I am delighted, too, that she is being so supportive of the campaign of the noble Lord, Lord Storey.

With regard to her last answer in relation to Amendment 110, I look forward to sharing with her the correspondence I have had with the chief inspector, who takes a different view, but this can be remedied later in the passage of the Bill if the chief inspector is right. I beg leave to withdraw my amendment.

Amendment 87 withdrawn.
Amendments 88 to 92 not moved.
Amendment 93
Moved by
93: Clause 50, page 52, line 22, leave out “, Academy standard”
Member's explanatory statement
This amendment is consequential on the removal of clause 1.
Amendment 93 agreed.
Amendment 93A not moved.
Amendment 94 not moved.
Clause 51: Failure to comply with school attendance order
Amendments 95 and 95A not moved.
Clause 52: School attendance orders: consequential amendments
Amendment 95B not moved.
Clause 53: School attendance: general duties on local authorities
Amendments 96 to 97ZZA not moved.
Clause 54: School attendance policies
Amendments 97ZA and 97ZB not moved.
Clause 55: Penalty notices: regulations
Amendment 97ZC not moved.
Clause 56: Academies: regulations as to granting of leave of absence
Amendment 97ZD not moved.
Clause 57: Expanding the scope of regulation
Amendment 97A and 97B not moved.
Clause 58: Section 57: consequential and related amendments
Amendment 97C not moved.
Clause 59: Education and childcare behaviour orders
Amendment 97D not moved.
Clause 60: Application of provisions applying to schools to independent educational institutions
Amendments 98 and 99
Moved by
98: Clause 60, page 64, line 17, leave out “enactment” and insert “provision”
Member's explanatory statement
This is a technical drafting amendment to match the terminology used in clause 60 with that used elsewhere in the Bill and in the Education and Skills Act 2008.
99: Clause 60, page 64, line 22, leave out from ““relevant” to end of line 23 and insert “provision” means—
(a) provision made by an Act passed before, or later in the same session of Parliament as, the Schools Act 2022,(b) provision made by Part 3 of the Schools Act 2022 (school attendance), and (c) provision made by subordinate legislation (within the meaning of the Interpretation Act 1978) before the end of the session of Parliament in which the Schools Act 2022 is passed.”Member's explanatory statement
This amendment corrects a drafting error: subsection (2) should have referred to “the Schools Act” rather than “this Act”. The amendment would also allow the application to independent educational institutions of provisions made by or under Part 3 of the Bill itself, as those are closely linked to other provisions that may be applied under the power.
Amendments 98 and 99 agreed.
Amendment 99A not moved.
Amendment 100 not moved.
Clause 61: Independent educational institution standards
Amendment 100A not moved.
Clause 62: Failure to meet standards: suspension of registration
Amendment 100B not moved.
Clause 63: Deregistration decisions on grounds of standards: appeals
Amendment 100C not moved.
Clause 64: Material changes to registered details
Amendment 100D not moved.
Clause 65: Powers of entry and investigation etc
Amendment 100E not moved.
Clause 66: Independent inspectorates: reports and information sharing
Amendment 100F not moved.
Amendment 101
Moved by
101: After Clause 67, insert the following new Clause—
“British values(1) In any statement relating to British values for education purposes at primary and secondary level in England and Wales, the Secretary of State, OFSTED and any other public authority must include—(a) democracy,(b) the rule of law,(c) freedom,(d) equal respect for every person, and(e) respect for the environment.(2) Any statement under subsection (1) must refer to British values as “values of British citizenship”.(3) The values listed under subsection (1)(a) to (e) must be taught as part of citizenship, at the first to fourth key stages. (4) In subsection (1)(a) “democracy” includes—(a) an independent judiciary,(b) in a Parliamentary system, a Government that is accountable to Parliament,(c) regular elections, and(d) decentralised decision-making, accountable at an appropriate level to the electorate.(5) In subsection (1)(c) “freedom” includes—(a) freedom of thought, conscience and religion,(b) freedom of expression, and(c) freedom of assembly and association.(6) In subsection (1)(e) “respect for the environment” means taking into account the systemic effect of human actions on the health and sustainability of the environment both within the United Kingdom and over the planet as a whole, for present and future generations.”
Lord Harries of Pentregarth Portrait Lord Harries of Pentregarth (CB)
- Hansard - - - Excerpts

I beg to move Amendment 101 on British standards, which stands in my name and those of the noble Lords, Lord Blunkett and Lord Norton of Louth, and the noble Baroness, Lady Meacher.

The Ofsted chief inspector, Amanda Spielman, has said:

“When it comes to British values, we often see an oddly piecemeal approach, which too seldom builds the teaching into a strong context … we see a lot of wall displays and motivational assemblies, but not much coherent thinking about how a real depth of understanding can be built through the academic curriculum”.

British values have to be taught in schools, but there is a fundamental problem at the moment about them being taught.

The Minister has been kind enough to see me twice and I thank her very much for that. The last time I saw her, she said that she thought that any problems—I think it fair to say that she would recognise that there are problems—could be addressed through changing the guidance given to schools. However, the problem goes much deeper than that.
When teaching British values was first introduced in 2015, some people here will remember that it met with quite a lot of opposition. That opposition may have been totally unfounded, but the fact is that it met opposition from those who objected to the whole concept of British values, as though it implied that British values were superior to other values, as well as from certain sections of the Muslim community. Whether or not that opposition was justified, it was there and, sadly, it has persisted to this day. That is one of the main reasons why I am bringing this amendment forward. We need to try to overcome that opposition and dissipate it. I believe passionately that the teaching of British values is absolutely fundamental to our education system, and it is not being done well at the moment.
I will give your Lordships an example. A friend of mine is from a left-wing political family and feels very committed to helping teachers teach British values in schools. However, when he mentions this to some of his teacher friends, they, as it were, back away from him in suspicion: “What are you doing, being involved in something so chauvinistic like this?” So, there is a suspicion and a hostility that needs to be overcome by many teachers and many pupils.
My amendment seeks to address this, first, by a very simple change. Instead of simply talking about British values, it talks about the “values of British citizenship.” There can be all sorts of interesting arguments about British values. Like Jeremy Paxman, you might think that one British value is a sense of humour or irony; no doubt Chinese and Russians have their own sense of their own values. However, when it comes to citizenship, that is a very clear legal concept. If you sign up to be a British citizen or you are born in this country and are a citizen by birth, there are quite specific values—or there ought to be—associated with being a citizen. They may be better or worse than being a citizen of China or whatever, but they belong to our society, and it should be quite clear in schools what these are.
That is the first change. There is a second change that my amendment would make compared with what is taught already. The present system of values concentrates on the fact that people should be respected whatever their beliefs or lack of beliefs. That, of course, reflects the worry in 2015 about religiously-based terrorism, which is why that was put in in that form. However, that resulted in something rather less rounded than it ought to be and rather skewed, and one fundamental value was left out: that there should be equal respect for every person. As I said when I introduced this in Committee, in our society, one counts for one. You get just one vote, not more than one. The law has to treat people equally whether they are wealthy or poor. Every government department has to treat people equally. That is an absolutely fundamental value, and it should be clear in the teaching of British values, as it is in my amendment.
Secondly, in the present set of values we have this rather loose phrase “individual liberty”. We need something much more precise than that, and which is clearly defined in both national and international law. It is a simple word: freedom, which goes alongside democracy, the rule of law and the equal worth of every single person.
There is an addition to my list which is not in a usual list: respect for the environment. This is partly because people feel very strongly about that these days, and it would also help to gather the interest and support of young people who are being taught British values in schools. One fundamental failure of the present system is that it is not at all clear who should be teaching British political values in schools, and my amendment makes it clear that it should be taught as part of citizenship education. As a result, citizenship education, which at the moment is not at all well done, would have much more substance to it and there would be a mutually reinforcing relationship between citizenship education and the teaching of British values.
My amendment is a simple one. There are 12 words in the present list of values that have to be taught, and my amendment would increase that by four words, to 16. Admittedly, I do include definitions, because it is very important that it should be clear in schools that children are being taught about liberal democracy, not the kind of democracy they have in Russia or that they might claim to have in China, where of course they do have elections. There are certain characteristics of liberal democracy which I have put in those definitions.
I very much hope that the Minister, even at this late stage, will have second thoughts about this and see the compelling force of the argument. I believe that there is good support for the amendment—at least, I hope there will be—from all around the House. I beg to move.
Lord Blunkett Portrait Lord Blunkett (Lab)
- Hansard - - - Excerpts

I support the noble and right reverend Lord, Lord Harries, and declare my interest as the honorary president of the Association for Citizenship Teaching—and I put on record that I will adhere to normal sartorial values on Wednesday.

I will speak very briefly, because there is still a long way to go this evening, in support of the amendment. It follows on from the Ties that Bind recommendations of the Select Committee chaired by the noble Lord, Lord Hodgson, back in 2018; the Justice and Home Affairs Committee’s investigation into the “life in the UK test”, published just a few weeks ago; and the ongoing desire to align the Department for Education—sadly now without the guidance of Robin Walker, who was deeply committed to citizenship and who was actually shifting the templates a little—and Ofsted, which is not aligned at all with what the DfE says or what we thought Ofsted had understood four years ago. It is a very strange juxtaposition.

I just want to put on record that we need to understand and be clear about the difference between personal development and citizenship education, which incorporates an understanding of the broad values of being a citizen in the United Kingdom, as well as the practical measures that make it possible for our democracy to function properly.

At this moment in time, given the clear need for respect from one politician to another, whether it is on ITV or Channel 4, we need to reinforce with our young people one simple message. We may, as your forbears, have got into a terrible mess and our democracy may well be extremely fragile—as I was saying last week, quoting the noble Lord, Lord Hennessey—but the future is in your hands, as the next generation, and beyond. Unless we guide and provide a framework and a landscape by which those young people understand what is happening in our democratic process, we will have let them down, because they will think that what they see on their televisions and what they read in their newspapers at the moment constitute the values that we espouse. They do not.

Baroness Whitaker Portrait Baroness Whitaker (Lab)
- Hansard - - - Excerpts

My Lords, I offer very strong support for Amendment 101, so eloquently moved by the noble and right reverend Lord, Lord Harries of Pentregarth, and spoken to by my noble friend Lord Blunkett. It offers a coherent system we can unite around. Other countries have their written constitutions; we do not. The Americans also have the Gettysburg Address—easy to teach, easy to understand. In this amendment, we have a coherent system of basic principles of democracy, human rights and equality and the modern imperative of care for the environment. This whole subject, taught as a unity, is particularly important for non-faith schools also, which have a less coherent framework than the faith schools. We are a diverse society. We have several faiths and beliefs and we need a framework that we can cohere around, such as the values of British citizenship in this amendment. The Minister would be doing the children of this country a great service if she were to accept it.

Lord Knight of Weymouth Portrait Lord Knight of Weymouth (Lab)
- Hansard - - - Excerpts

My Lords, I will briefly add to the chorus of approval for this amendment moved by the noble and right reverend Lord, Lord Harries. He talked about the problems attached to British values and how they have appeared to exclude some people. What he is trying to achieve is truly inclusive.

I add my voice in particular on sustainability. All of us in this and the other House have been circulated Sir Patrick Vallance’s briefing to MPs on the challenge of climate change. Looking at that, and at the scale and urgency of the challenge from those presenting, it was clear to me that what is missing is public behaviour change. I am absolutely convinced that the key to unlocking that lies in our schools and with our young people, as the demographic which is most enthusiastic about this and can reach into everyone’s home and start to shift our behaviours.

The education company Pearson recently published its School Report, which showed that 50% of school leaders want to teach this—a glass-half-full/glass-half-empty figure. We have had a strategy from the Government which said they wanted schools to do this. Only half of school leaders are planning to do so. We need to do more, including this.

Lord Sandhurst Portrait Lord Sandhurst (Con)
- Hansard - - - Excerpts

My Lords, I will speak to Amendment 105, the purpose of which is to ensure that parents can discover what their children are being taught in school. They must have access, we say, to the materials deployed in class.

It arises because some commercial providers of materials in the sensitive field of RSE and health have tried to stop parents getting access to materials which they have provided for use in class. Requests to see material have been met with the assertion that it is protected and exempt from disclosure under the Freedom of Information Act by reason of commercial confidentiality. In other cases, copyright has been raised. In some instances, schools have simply refused point blank. That is what the amendment is aimed at.

The noble Lord, Lord Macdonald of River Glaven, who put his name to this amendment, regrets that he cannot speak because he is elsewhere on a prior engagement. On our side, we are grateful for the two meetings we have had with my noble friend the Minister and officials. They have been constructive; we have made progress and received an encouraging letter on Friday.

I remind the House that in the foreword to the 2019 statutory guidance for RSE and health education, the Secretary of State wrote:
“We are clear that parents and carers are the prime educators for children for many of these matters.”
Later, the same guidance says:
“Schools should also ensure that, when they consult with parents, they provide examples of the resources that they plan to use as this can be reassuring for parents and enables them to continue the conversations started in class at home.”
That is where we start, but we need it to be met and we need to go further.
In some schools, I am sorry to say, ideological beliefs are being asserted in these lessons as though they were fact. Biological facts about sex are consciously confused. Novel ideological beliefs are asserted as fact when they plainly are not. We have provided my noble friend the Minister with alarming examples of this. Parents must be confident that what their children are taught in this area and others is factually correct, evidence-based and not misleading propaganda.
I understand that my noble friend will write a public letter to schools to explain that matters of copyright and confidentiality should not be raised as barriers to parents. We understand that the ministry is working on guidance on the specific topic of transgender issues. On our side, we are grateful for this, and for the indication that my noble friend will consult stakeholders to take this forward. As she knows, my concerns are not limited to the specific issue of RSE and health; the problem spreads wider—hence the terms of the amendment. On our side, we appreciate that schools are in a sensitive position on the front line of what are now called culture wars. There will be practical issues to address, but a way forward must be found. Parents must have access to and confidence in what their children are taught across the curriculum. Our amendment raises an important point of principle.
That said, I look forward to hearing in due course what my noble friend has to say.
Baroness Morris of Yardley Portrait Baroness Morris of Yardley (Lab)
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My Lords, I speak in support of the amendment just spoken to by the noble Lord, Lord Sandhurst, to which my name has been added. I thank the Minister for the meetings we have had; I think we have made real progress. She completely understands the issue and is doing what she can within the constraints she has to try to move this forward, and progress has been made, but there are still things to do. That is why it is worth this debate and worth hearing further words from her from the Dispatch Box.

I was first drawn to this issue because I thought it was merely an issue of copyright. The example that had been brought to my attention was materials not shown to a parent because of copyright; the education curriculum was being delivered by a third party which had copyrighted the materials. I thought it was as simple as that. The Minister has now made sure that, legally, you can do that, and all heads will be told—and a lot of work will have to be done to make sure that all heads realise that and act on it. But the more I look at the issue, the more difficult it appears.

Where we have curriculum content over which there is very little disagreement, the issue almost never arises because parents do not particularly want to see curriculum content all the time. It is in these tricky areas, particularly in PSHE, where there is no national curriculum content, that the real problems arise. There is no doubt that some of the issues which have since been brought to my attention and I have had the opportunity to look at have arisen from real differences of opinion and breakdown of relationships between the head teacher and the parent.

That is the problem at the core of this. If it gets to the point where there is an argument between the parent and the head teacher, and the head teacher is saying that the parents cannot look at the materials, that relationship stands little chance of being mended. That is the real risk. It happens only where content is contested, which makes the problem even worse. That is why it is important to sort this out.

I hope the Minister will agree that the contention has to be taken out of some of the curriculum content. The issue that I was interested in, as was the noble Lord, Lord Sandhurst, is the teaching of sex, which I believe is biologically based. Some of the materials that I saw that were being withheld from parents were hugely contentious, and many parents—quite reasonably, to my mind—would not have wanted them to be taught to their children. It is a complicated issue, and there are three main issues. First, parents should have the right to see the materials; secondly, copyright is irrelevant as a barrier to them doing so; and, thirdly, we are looking to the Government to offer some very clear guidance on subject content as far as these contentious issues are concerned.

I completely understand that we do not want to get to a position where parents demand to have the right to see every note that a teacher is going to use in a lesson. When I was a teacher, I would have been horrified if I had had to show my lesson notes to the parents. That is not where we want to be. We are talking about a broad understanding of the curriculum content so that parents and teachers can be the joint educators of children, especially in these important areas. I reassure the Minister that I completely understand the need to draw professional boundaries, but at the moment parents are being pushed into challenging those professional boundaries because they cannot have access to the materials at the first ask. I am grateful to the Minister for what she has said so far in the letters to us, and I hope she can go further.

I support the amendment by the noble and right reverend Lord, Lord Harries. The argument has been forcefully made today, and I think it is unanswerable. We are all in favour of the values of British citizenship being taught. We know it is not being done well, and I genuinely think that the way forward that he points to would offer a better chance of getting everyone on the same side for a common goal.

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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My Lords, I have also put my name to Amendment 105. I commend the noble Lord, Lord Sandhurst, and the noble Baroness, Lady Morris of Yardley, on their work on this issue, which has been very important, and the Minister on listening and moving forward.

I start off with a bit of a caveat, because a lot of good things have been said: as an ex-teacher, I too am only too aware of the dread of pushy parents intervening in the minutiae of school, turning up and demanding to see this, that or the other. More seriously, we know what happened when a group of activist parents gathered outside Batley Grammar School and demanded to dictate what the curriculum was. That is not what this is about at all.

The context for the Government, which is very important, is that at the moment, because parents cannot see this material, it has been left in an informal morass of people hearing stories and getting particularly worried. Parents have had to resort to freedom of information requests to see third-party materials, and that really is not helpful. There is a rather excellent exposé by Milli Hill entitled “Worrying truth of what children are REALLY learning in Sex Education”. We are leaving it up to journalists to do these exposés. That just worries parents, so we have to grab this back.

Most parents think that, when their children are being taught about pronouns, that is helping with their English grammar, but then, when they read in the newspaper that it has something to do with policing language and gender ideology, they understandably worry. They worry when they hear about the affirmation of radical medical interventions, such as the amputation of sexual organs. These things are really scary. I urge the Government to grab hold of these horror stories and deal with them. I would like to see them acting on this very important issue.

There are matters that go beyond the scope of Amendment 105. The issue of parental access and teaching materials talks to a problem of parents feeling that the curriculum on contentious issues is being politicised. There is an excellent new report from Don’t Divide Us called Who’s in Charge? A Report on Councils’ Anti-racist Policies for Schools, which I will pass on to the Minister and I hope she will even meet the authors. The reason why I refer to it is that I do not want people to think this is just about the gender ideology issue. It is a sort of broader feeling that many parents have that there are third-party providers creating a political atmosphere in school, and that even schools themselves are doing the same. That raises problems of parents’ trust in what is being taught to their children.

I therefore query Amendment 101, on British values, despite the brilliant speeches we have heard in support of it. I was initially attracted to this amendment. After all, it mentions

“freedom of thought, conscience and religion … freedom of expression, and … freedom of assembly and association.”

These are my passions; I go on about them all the time. I thought, “Great—can we get them into schools?”. But when I talk about freedom of expression, freedom of conscience and freedom of religion, these days I am often written off as some sort of alt-right lunatic who—

Baroness Fox of Buckley Portrait Baroness Fox of Buckley (Non-Afl)
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There we go. I am written off as someone who wants free speech only in order to come out with hate speech. I say this because even something such as free speech is contentious. I do not think that trying to use an amendment such as this, including the word “citizenship” to get around the fact that there are contentious arguments about values, will resolve the problem. I wonder whether I can be consoled by those who tabled this amendment that it is not about avoiding a political argument via using the law. It could end up politicising the curriculum.

For example, I disagree with the proposed new paragraph on “respect for the environment”. We have to take into account that Section 406 of the Education Act and schools’ legal obligation to remain impartial can be compromised by things that people in this House are passionate about politically but that maybe should not be in schools.

That finally gets me to my concerns about Amendments 118B and 118H, which call for

“a review into teaching about diversity in school curriculums”.

I am concerned about their emphasis on British history including

“Black British history … colonialism, and … Britain’s role in the transatlantic slave trade”—

not because I do not think those things should be taught, but we have to ask whether this is being promoted for historical or political reasons. The recent controversy over the OCR syllabus on English literature being changed, when we had the works of Keats, Thomas Hardy, Wilfred Owen and Larkin removed, was justified not on literary merits but on the basis of an emphasis on ethnicity, diversity and identity. That kind of politicising of the curriculum does not do any service for the pupils we are teaching and is making parents rather suspicious about what is going on in schools.

Lord Woolley of Woodford Portrait Lord Woolley of Woodford (CB)
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My Lords, I rise to speak to Amendment 118A in my name. Before I make any substantive remarks, I say on the record that, on perhaps the hottest day ever recorded in this country, this Chamber is cooler than the Central line; I was on it this morning. I never thought I could put the House of Lords and being cool in the same sentence. I want to thank a few people who have helped me put these remarks together: L’Myah Sherae, Alfiaz Vaiya and Simon Dixon in Stella Creasy’s office.

Only through a freedom of information request by the Guardian newspaper do we know that UK schools recorded more than 60,000 racist incidents in the last five years. Many people, including black community and education leaders, accuse the Government of failing to meet basic safeguarding measures by hiding the true scale of the problem. For example, the data from the Guardian excluded 80% of England’s multi-academy trusts. The scale of racial incidents in schools is therefore probably much worse, causing one academic working in this area, Professor David Gillborn from the University of Birmingham, to conclude that we have a racism epidemic in our schools.

What does racial discrimination look like in our schools? It might be plain old racial abuse or, worse still, racial bullying. The overwhelming majority of this would be student to student. But there are other types too that can easily be characterised as institutional. Take what occurred to Child Q in east London, for example, whom I am led to believe was taken out of her exam by teachers to be handed over to the police and strip-searched, including the removal of a sanitary towel, while they looked for drugs. What type of empathetic educational culture allows that to occur? Imagine for a second a school culture that would allow your daughter, your granddaughter, your niece or your friend to be treated in such a way.
Yes, this might be an extreme example, but it can happen only in the culture of that environment. There are many other examples too. A parent came to me and said that her son was distressed after being at school and the dinner lady saying to him when he was being animated, playing with his friends, “Why are you behaving like animals? Why can’t you behave like those?”, “those” being a group of white children. The parent went to the school to meet the headmaster and told them the story. The headmaster said, “It was nothing serious, just a misuse of language. Oh, and by the way, your son was late for school yesterday.” Nothing occurred.
Another example was when a parent came to me and said: “Simon, the headmaster said to my face that my child has the word ‘trouble’ written on the top of his head when he walks into a class. That is what the teachers think of him.” She said that surely that was not fair. How could he be perceived that way when he goes into a new class? The head teacher said that her son had to change so people would think differently of him.
How does this culture play out to black children? We know, because questions have been asked, such as those asked by the YMCA. Some 50% of young black kids asked said that racism, including teacher perception, is the biggest barrier to their educational success. The data somewhat proves them right unless we feel that black children are predisposed to bad behaviour. How do we adequately explain that they are six times more likely to be permanently expelled? Other groups, such as Gypsy, Roma and Traveller children, are nine times more likely to be expelled.
I was struck by what was said by a very talented young author, Jeffrey Boakye, a black English teacher and broadcaster, who argued that some schools are unsafe for students marginalised by race. There is a prevalence of black children who are subject to adultification or demonisation.
My amendment is not a silver bullet but it helps focus people’s attention on—the first rule of thumb—acknowledging that there is a problem and having a plan to deal with it effectively. My amendment would require Ofsted to monitor school compliance with the equality legislation, ensuring that schools which fail to tackle the tens of thousands of instances of racial discrimination are identified and changes are made. I know that the Minister might come back and say that there is scope for equality in Ofsted inspections. Clearly it is not working otherwise we would not have, as one academic said, an “epidemic of racism” in our schools.
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 Portrait Lord Hunt of Kings Heath (Lab)
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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 Portrait Lord Storey (LD)
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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.

The amendment in the name of the noble Lord, Lord Hunt, is interesting. It will probably happen—it has to, does it not, in the future?
The amendment in the name of the noble Lord, Lord Woolley, is very important. If I may say so, I am quite emotional about it. He is absolutely right: we have to be sure that black, Asian, Jewish and other minorities in schools are completely part of the school community and that they do not in any way face some of the issues that the noble Lord told us about. I add only that there is light at the end of the tunnel. There are some wonderful examples of lots of schools where the school community is made up of a whole range of pupils from different ethnic groups who work, play and respond together. I do not want to think that some of the schools that we know about are what our English education system is really like. However, it is right that we do what the noble Lord suggested, and that would make us feel more comfortable and relaxed about what is happening in our schools.
I will be very cheeky and ask the noble Lord to use “head teacher” rather than “headmaster”. To my mind, the former is not gender-specific.
That is my party’s view on those amendments.
Baroness Lawrence of Clarendon Portrait Baroness Lawrence of Clarendon (Lab)
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My Lords, I will speak very briefly on Amendment 118B.

For generations, there have been interventions that have looked at education, but what needs to change is to make schooling applicable to everyone. What is always missing is where the black child fits in. We have only to look at the scandal around the Windrush generation and the lessons that have not been learned, and the injustices that occurred back in 1948 and still do in the present day.

Back in the 1960s, Bernard Coard wrote a book called How the West Indian Child is Made Educationally Sub-normal in the British School System. The British school system has failed children in schools following the immigration of their parents into this country, and the racism they suffered in education in some cases continues to this day.

In my opinion, the majority of children in pupil referral units are from the black community. Children are sent there for many reasons, and racism is high on the agenda. Once children are placed there, you could say that is the end of their education, life chances and prospects. We can see this in the Prison Service and with employment opportunities.

The Schools Bill needs to look at education for all. Education is supposed to equip you for the future, and for you to understand who you are and that your background matters.

Racism was laid bare during the pandemic. We saw that the first casualties to have died of Covid-19 were from the black and Asian community. This was highlighted as part of my review.

Unless the Government look seriously at the impact of racism in our schools on education and wider society, we will back discussing the same agenda in years to come.

To touch on black history, it does not address the curriculum in education. I believe that decolonisation is the way forward. The Stephen Lawrence foundation will be working on this moving forward.

Wales is looking at education and the changes that are needed to the system. This is a start. What are the Government looking to do in the other devolved nations? Following on from the comments of the noble Lord, Lord Woolley, I wish that we would take the racism that happens in schools a lot more seriously.

Lord Agnew of Oulton Portrait Lord Agnew of Oulton (Con)
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My Lords, I reassure the noble Lord, Lord Hunt, that regional schools directors are civil servants. I am sure my noble friend the Minister will confirm that there are no proposed changes to that. During my tenure they were all directly answerable to me on behalf of our Secretary of State. I tried very hard to ensure that we had a mixture of skills in that group.

When I was the academies Minister, the national schools commissioner had been a teacher, then a headteacher, then the chief executive of an academy trust, so he had a very good understanding of the whole culture. We had another very good regional schools commissioner who had been the head of local authority social services and so on, but we also had permanent civil servants. My mission was to bring them all together. They all reported to me, and we met as a group regularly so that there could be a transfer of ideas between them. I do not think there are any plans for that to change.

Baroness Wilcox of Newport Portrait Baroness Wilcox of Newport (Lab)
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My Lords, I am speaking to the two amendments we have in this group: Amendments 118G and 118H. I thank my noble friend Lady Lawrence for making some extremely salient points which I will refer to subsequently.

To the noble Lord, Lord Storey, I would like to explain that Amendment 118G will require every academy to follow the national curriculum. We have the list of things we would like to talk about because of the inherent contradictions we have found in this Bill. We have been trying to work around them and are attempting to fill the gaps as best we can. As the Government were clearly intent on a sweeping approach, we felt it was imperative that those issues be included in the national curriculum.

Amendment 118H would compel the Secretary of State to

“work with the devolved administrations”,

as noted by my noble friend Lady Lawrence, to launch and publish a review into teaching about diversity in the curriculum and

“to ensure that teaching of British history includes but is not limited to … Black British history … colonialism, and … Britain’s role in the transatlantic slave trade.”

The English education system could learn a great deal from Wales in this matter. Our new curriculum will be launched this September. The new mandatory elements of the curriculum, in particular the teaching of the experiences and contributions of people from minority backgrounds, will broaden the education of every child in Wales so it better reflects the experiences of the whole population of Wales. Educating young people about the experiences and contributions of minority ethnic peoples in Wales, past and present, will promote lasting change aimed at tackling broader inequalities within society. I urge the Minister to support this aspect of our range of amendment suggestions.

In conclusion, we also support Amendment 101 proposed by the noble and right reverend Lord, Lord Harries of Pentregarth, and other noble Lords. The values of British citizenship should include important elements, not least democracy and the rule of law—an important lesson learned by some Members of the other place in recent weeks.

Lord Lucas Portrait Lord Lucas (Con)
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My Lords, I am grateful to the noble Baroness, Lady Wilcox, for explaining her amendment to us. I am liberal rather than post-modern; I believe in the objective being one united society where we are all equal, rather than in the fractured values which her amendment proposes. It is really important that what we teach in schools covers all our experiences and all the threads that make up the UK. The English ought to learn a great deal more about the Welsh and Scots, for a start.

One of the fundamental problems, illustrated in the dispute with OCR over its poetry curriculum, is that we have allowed our examination system to become far too narrow. Yes, a thread of the undisputed greats in literature ought to run through things, as well as the thread of our history that used to consist of learning the names and dates of kings but is actually rather more interesting. Within them are the stories of us all—and that really ought to be us all.

To manage that within a school curriculum, you need a lot more freedom than we allow people at the moment, not less. We should not have a national curriculum that says, “These are the five things that you must teach”, but one with the ability to stretch broadly, bring things in and illustrate them and, as the noble Lord, Lord Storey, said, enrich people’s local experience with things that mean something to them. I support the noble and right reverend Lord, Lord Harries, in his endeavours.

My noble friend Lord Sandhurst will know that I am very much with him on his amendments, and I am delighted to find myself with the noble Lord, Lord Woolley, in what he is asking for. The noble Lord says that he is surprised to discover that the Lords is cool. For those of us who come from the west, we walk in every day past a notice that says, “Peers entrance”. Indeed they do. The problems he outlines remind me a lot of what goes on with sexual abuse in schools. The answer is to face it, look at it and really be interested in, not afraid of, what is going on. We should be confident that we do not want it to be that way. We should not expect quick solutions so that we can forget about it, but know that this will take us a good long while to sort out and that it has some deep roots. I would really like to see the Government take some steps in the sort of direction the noble Lord proposes.

Baroness Barran Portrait Baroness Barran (Con)
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I thank the noble and right reverend Lord, Lord Harries, for Amendment 101. As he knows, we support the principles at the heart of this amendment and agree that teaching staff and leadership in schools need to understand the important role that fundamental British values play in our society and beyond.

I think he is making two points: one about curriculum content and one about the quality of the delivery of that curriculum. The Government believe our current arrangements provide a sound basis for this. As your Lordships know, schools have a duty, as part of providing a broad and balanced curriculum, to promote pupils’ spiritual, moral, cultural, mental and physical development. Those principles are embedded in the Independent School Standards, teacher standards and Ofsted inspections.

As to the comments on the environment, our ambitious sustainability and climate change strategy publicly addresses the importance of teaching about the environment. This includes teaching topics related to climate change, covered within the citizenship, science and geography national curriculum.

We have prioritised helping schools to remain focused on recovery from the pandemic. This is why we undertook in the schools White Paper not to make any curriculum changes during this Parliament. The noble and right reverend Lord referred to the comments of the Chief Inspector of Schools about what she and her colleagues had seen in schools on the teaching of these subjects. We expect schools to take those comments very seriously and respond to them.

As the House is aware, Ofsted is undertaking a review of personal development teaching in schools in England, which will include consideration of citizenship education, will involve an analysis of inspection evidence, and will end with the publication of a national report on this later in the year. As I indicated to the noble and right reverend Lord when we met, we are aware that there have been a number of curriculum changes since the current guidance on promoting fundamental British values in schools was issued, and we will consider whether and how to reflect those changes to improve and strengthen the guidance. I would be delighted to work with the noble and right reverend Lord, and those who agree with him, to ensure that we do so in the best way possible.
Turning to Amendment 118A, tabled by the noble Lord, Lord Woolley, I confirm that Ofsted, as a public body, is required to adhere to the public sector equality duty, including in exercising its inspection functions. Ofsted published an equality, diversity and inclusion statement in 2019 outlining the specific consideration that it had given to this duty in developing and finalising its inspection arrangements. As I said in response to the earlier amendment, inspectors are required to take account of pupils’ spiritual, moral, social and cultural development, and how the needs of the range of pupils are met. Through the key judgment on quality of education, inspectors assess the extent to which the curriculum meets the needs of all pupils, including those with special educational needs and disabilities, and those who are disadvantaged.
The personal development judgment highlights the importance of the role of schools in equipping pupils to be respectful citizens. It also takes account of the school’s promotion of respect for different protected characteristics. Through the leadership judgment, inspectors consider how the school fulfils its legal duties, including those under the Equality Act. The noble Lord may be aware that in the national professional qualification for leadership there is an important section on leadership in relation to the culture and values within a school.
Turning to the second aspect of the amendment, I confirm that inspectors will take account of provision directly run by schools, provided that at least one child from those schools attends that provision. Inspectors do not, as part of a school inspection, assess the quality of the various clubs and activities that are delivered by third parties on a school’s premises. Doing so could act as a disincentive for schools to offer such services, which parents value greatly and children benefit from.
I will now respond to Amendments 118B, 118G and 118H, in the names of the noble Baronesses, Lady Chapman, Lady Wilcox and Lady Lawrence. Turning first to the proposal to introduce a requirement for academies to follow the national curriculum, I have already emphasised that we value academy freedoms. The freedom for academies to set their own curriculum is fundamental.
The national curriculum exemplifies high-quality, good teaching practice that is well understood by teachers and provides baseline guidance from which academies can innovate. Our current model allows all state-funded schools to go above and beyond the national curriculum specifications. While maintained schools must ensure that they teach at least the content of the national curriculum, academies have more freedom to innovate across the curriculum and focus on the specific needs of their pupils. It is paramount that the Bill does not restrict curriculum freedoms, to enable schools to adapt their curricula carefully, based on the specific characteristics of their pupils, to ensure that the education delivered will be more equitable for all.
The Government feel that a review of the English curriculum of the nature suggested by the noble Baronesses is unnecessary. We are already clear that teaching subject-related diversity can be and is being achieved. The national curriculum theme at key stage 3 entitled “Ideas, political power, industry and empire: Britain, 1745-1901”, covers these topics; further, all key stages can include teaching on these topics. Black history can be taught across the curriculum. It can include the role of the countries of the former British Empire in both world wars, and the part that black, Asian and minority ethnic people played in shaping the UK in the 20th century.
In the most recent survey of history teachers by the Historical Association, the vast majority of schools—around 87%—reported having made substantial changes to their key stage 3 curriculum in recent years to address issues of diversity. These also include other dimensions of diversity, such as the inclusion of women’s, disabled people’s and LGBTQ+ histories and working-class histories, as well as wider world history and the inclusion of black and Asian British history.
In relation to Amendments 118B and 118G, we outlined in our schools White Paper that our priority for this decade is to increase standards in literacy and numeracy across the country. This is vital for children to be able to access a broad and balanced curriculum. Changes to the national curriculum would create an instability that would detract teachers’ time from these priorities, at a moment following the pandemic when they have never been more important.
I turn to Amendment 105 in the name of my noble friend Lord Sandhurst and the noble Baroness, Lady Morris. It is right that parents are able to engage with their children’s curriculum. We want to make sure that happens in all cases, but we need to take sufficient time to consider whether we might go beyond the requirements we already have in place without unintended consequences, especially for the majority of schools, which we believe have good relationships with parents. We are concerned that there could be a risk that schools will be burdened by excessive requests or will avoid teaching legitimate topics to avoid confrontation.
I was pleased to meet my noble friend Lord Sandhurst and other noble Lords recently and have set out the current legal position in a letter, which I placed in the House Library. I will not repeat the detail but we are clear that schools should engage with parents when drawing up the curriculum. More specifically, copyright does not prevent schools showing teaching materials to parents. There are also detailed requirements in relation to schools making parents aware of what is being taught in relationships and sex education. Schools should not enter into contracts with providers of teaching materials that may restrict their ability to meet those requirements.
I believe that clarifying the current position will help drive down the number of instances where schools refuse to share materials, such as those shared with me by my noble friend. We will write to all schools in the autumn, once they have reopened, to set out a clear expectation that schools respond positively to any reasonable requests from parents to view curriculum materials. We will ensure that the content of the letter is available publicly to help inform parents’ conversations with schools.
We will also consider over the summer whether further action is needed. The statutory guidance to schools on teaching relationships, sex and health education, and engaging parents in the development of curriculum materials, was published following a formal external consultation. There were over 11,000 responses, which shows the extent of public interest in the issue, so we need to give any further changes proper consideration. I plan to host a round table for parents and teachers early in the new term to ensure that we can start the conversation and get the balance right.
Beyond those early actions, we are working with the Equality and Human Rights Commission to make sure that we are giving the clearest possible guidance to schools on transgender issues and will be carrying out a full public consultation on that. Given the complexity of this subject, we need to get this right, but it will take some time to develop. We hope to be able to publish new guidance in 2023, which will sit alongside the clear and comprehensive guidance we have already published to help schools better understand their duties in relation to political impartiality.
I turn now to Amendment 118M in the name of the noble Lord, Lord Hunt. We are committed to becoming a department that thinks, acts and partners much better locally. That is why we have established a new regions group which is aligned to the nine regions used elsewhere in government and will allow us to deliver a joined-up approach across departmental priorities. Regional directors already take key operational decisions delegated to them by the Secretary of State for Education, and are accountable to him for those. In doing so, they operate on the basis of a transparent decision-making framework, which is available on GOV.UK. Regional directors work closely with local authorities, including helping to facilitate school improvement support, on academy conversions and supporting and challenging them to fulfil their statutory duty to secure sufficient school places. In taking decisions, directors are advised by their advisory boards.
The noble Lord asked specifically about the role in relation to children’s social care, so, just to be clear, I say that in creating the regions group we reflected feedback we had had from stakeholders that we had worked with, which was that they were often having to talk to three different teams within the department. The idea has been to bring those teams together in what we hope will provide a single point of contact, and be more efficient and effective for those that we work with.
With that, I ask the noble and right reverend Lord, Lord Harries, to withdraw his amendment, and other noble Lords not to move theirs.
Lord Harries of Pentregarth Portrait Lord Harries of Pentregarth (CB)
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I thank all those who spoke in support of my amendment, and I listened with great interest to those who spoke so powerfully on a whole range of amendments. I thank the Minister for what she said, and for the offer to meet her to talk about guidance, but the problems are more deep-seated than just changing the guidance. One point that I want to correct is that I do not believe that my amendment involves a change of the curriculum; after all, fundamental British values have to be taught at the moment. This is not changing the curriculum; it is just exactly listing the values, to gain greater support from teachers and pupils.

I do not intend to divide the House tonight, although I know that there is very strong support all around it from all parties and I have not lost confidence in this amendment. A new Government are coming in in September, we have the Third Reading in September, the Bill still has to go to the Commons after us, and I believe that the reasons in favour of this small but significant change are so compelling that it eventually will be picked up by one Government sooner or later. With that, I beg leave to withdraw my amendment.

Amendment 101 withdrawn.
Amendments 102 and 103 not moved.
Consideration on Report adjourned.