Amendment 30

Schools Bill [HL] - Committee (2nd Day) – in the House of Lords at 3:22 pm on 13th June 2022.

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Baroness Barran:

Moved by Baroness Barran

30: Clause 2, page 3, line 35, leave out subsection (6)Member’s explanatory statementThis amendment removes clause 2(6), bringing the treatment of secure 16 to 19 Academies under that clause in line with that of other Academies. This means that if an Academy standard applies to secure 16 to 19 Academies, this can trump any corresponding contractual provisions.

Photo of Baroness Barran Baroness Barran The Parliamentary Under-Secretary of State for Education

My Lords, I turn first to the government amendments in my name. The majority of these represent technical amendments to deliver the policy as intended, extend consultation requirements to existing measures and otherwise clarify the intent of the Bill.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Opposition Whip (Lords), Shadow Spokesperson (Business, Energy and Industrial Strategy and International Trade) , Shadow Spokesperson (Justice)

I apologise, but I want to intervene on the Minister before she gets too much into her stride. I want to put on record the disappointment from these Benches that these amendments, which we do not consider to be simply technical or minor, are grouped together. It is a shame, because we would have liked to debate them separately. Can the Minister bear that in mind as we come to Report?

Photo of Baroness Barran Baroness Barran The Parliamentary Under-Secretary of State for Education

Of course, we will take that into consideration. I was not aware of the noble Baroness’s concerns. To echo that, there are two measures which are more substantial, which relate to secure schools and a prohibition order as part of our enhanced suite of powers to tackle unregistered schools.

I turn first to Amendments 30, 42 and 76, relating to secure schools and their particular context. Secure schools place education at the centre of the response to supporting children in custody, to reduce reoffending and improve children’s life chances. They will be established as both secure children’s homes and secure 16 to 19 academies using the academies framework as a basis for opening.

Secure schools’ funding agreements require unique provisions that reflect their context. Clause 2(6) was drafted to ensure that future new academy standards would not invalidate those unique provisions. We have now confirmed that primary legislation is not required to achieve that because new standards can be selectively applied within the standards themselves. Amendment 30 therefore removes Clause 2(6) as unnecessary to the functioning of the Bill.

Turning to government Amendment 42, Clause 8 requires the Secretary of State to provide seven years’ notice if they wish to terminate funding for an academy to ensure continuity for all year groups. Because children will generally spend fewer than two years in a secure school, Amendment 42 will modify Clause 8 to reduce the termination notice period from seven to two years for secure schools.

Amendment 76 introduces provision for secure schools covering payment termination notices as well as local impact considerations and consultation requirements. On payment termination notices, it amends the Academies Act 2010 to make it consistent with Amendment 42. Section 2 of the 2010 Act places a requirement on the Secretary of State to give seven years’ notice before ceasing payments to an academy. For the reasons I set out when discussing Amendment 42, this amendment will modify the Act to reduce this notice period to two years. Existing consultation requirements for academies include the requirement that the Secretary of State consider the impact of new academies on existing schools in the area. Given that the secure school will not be recruiting from the local area in the same way as local schools, we seek to disapply this requirement to secure schools.

The Academies Act also requires providers to consult relevant persons, such as local residents, on whether an academy arrangement should be entered into. Our view is that there will be a wide and complex range of views on the location of a secure school that the Government will wish to engage with. A “yes or no” consultation on a secure school is less likely to promote this engagement and, instead, the consultation will focus on how the secure school will work with local partners.

I acknowledge that Amendments 76A and 76B have been tabled to Amendment 76 in my name, and I shall respond to the comments from the noble Lord, Lord German, in my closing remarks.

Amendment 40 relates to academy trust standards. Clause 7 allows the Secretary of State to replace an entire trust board with a board of interim trustees. The amendment makes specific provision for the Secretary of State to consult the relevant religious body where the trust includes academies designated as having a religious character. It takes account of the fact that religious bodies have a particular interest in the governance of academies with a religious character, as reflected in those academies’ articles of association. Where the Secretary of State intends to appoint an interim trustee board, the religious authority will rightly wish to be assured that arrangements are in place to safeguard academies’ religious character. The amendment will ensure that religious bodies are able to make representations before any decision is made to appoint an interim trustee board.

I now turn to the five amendments relating to termination provisions for academy agreements and master agreements. Amendments 43 to 46 and 48 in my name relate to the termination procedure to be followed where a 16 to 19 academy is judged by Ofsted as not providing an adequate quality of education or training, or if the Secretary of State is of the view that boarding accommodation at an academy does not meet the required standards. The effect of these amendments is to apply the termination procedure which applies when an academy is judged inadequate by Ofsted, and it ensures consistency of approach. It also replicates the termination procedure currently provided for in funding agreements in these circumstances.

Amendment 47 expands Clause 11 so that it applies to academy agreements as well as master agreements in the case of a change of control of the trust or an insolvency event occurring. This means that the termination power will apply to a single-academy trust as well as a multi-academy trust. This is a corrective amendment to ensure that the legislation accurately replicates provisions in existing funding agreements.

I turn to Amendments 148 and 153. It is a criminal offence to conduct an unregistered, independent educational institution. Those who are responsible for these unregistered settings may knowingly expose the children in their care to a risk of harm and could be a safeguarding risk. Since 2016, fewer than 20 people have been convicted of this offence, but other measures in the Schools Bill should make it easier to identify and prosecute such people. This measure tackles what we have identified to be a risk in our current regulatory regime. There is insufficient practical impediment to those who have been prosecuted for running an unregistered school restarting their operations immediately and, again, exposing children to risk. These amendments tackle that weakness.

Those in receipt of one of these orders will be restricted from a wide range of activities, if these are necessary, to reduce the risk of harm to children. The intent is to make it easier to target and bring prosecutions against those who, through their previous behaviour, have demonstrated themselves willing to expose children to a risk of harm. Any application of these orders will be proportionate to the threat posed. The intent is to prevent reoffending and someone reopening a previously identified illegal school.

Amendment 155 makes it clear that the teacher misconduct measure applies to independent educational institutions that are not schools. Independent educational institutions that are schools are already caught by existing legislation.

Amendment 151 corrects a consequential amendment. It amends Section 125(1)(b) of the Education and Skills Act 2008, which deals with appeal rights against decisions of the Secretary of State to refuse an application for a material change. Without it, Section 125(1)(b) would continue to refer to decisions under Section 104(1) of the 2008 Act as being appealable. However, with the changes made by paragraph 6(2) of Schedule 5 to the Bill, refusals to grant a material change approval will now be made under Section 104, not Section 104(1).

Finally—your Lordships will be pleased to hear—I turn to the exclusion provision in Amendment 96, which seeks to make consequential amendments to Section 494 of the Education Act 1996. That section currently applies only in the case of maintained schools. This amendment will mean that funding transfers between local authorities, where a pupil is excluded from a school in one local authority area and admitted to a new school in a different area, apply in relation to both maintained schools and academies.

These amendments relate to Clause 41, which gives the Secretary of State the ability to make arrangements for in-year adjustments to schools’ funding allocations where pupils are permanently excluded, and will ensure that funding can follow excluded pupils where they move between schools in different local authorities. This amendment will ensure that these arrangements can operate properly in relation to academies under the new funding system that we are establishing in the Bill. I beg to move.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords) 3:30 pm, 13th June 2022

My Lords, I rise to introduce Amendments 76A and 76B, tabled by my noble friend Lord German, who is currently on a working visit to the Gambia and so is unable to be here. These amend government Amendment 76, which the Minister has already referred to.

We on these Benches support the proposal to create secure schools and academies. Youth custody, by its very nature, means that those within them are the most vulnerable and challenging young people. I once taught in a secure school and was struck by the care and hard work of all the teachers, committed to improving the life chances of some very damaged and occasionally violent young people. It was quite a scary commitment. That is why Charlie Taylor, in his review, proposed secure schools as a major way of dealing with the problems of the youth custody system.

However, we are concerned that local authorities have been ruled out of the objective of finding the best provision possible for these most challenging and vulnerable young people. There is a legal route open to local authorities to make a bid for running a secure academy, but such a bid would run counter to the Government’s policy. Yes, you can legally apply to run a secure school, but it is not government policy to accept your bid.

In his 2016 review, Charlie Taylor made two very clear points which are of relevance to this piece of legislation. The first was:

“Children who are incarcerated must receive the highest quality education from outstanding professionals to repair the damage caused by a lack of engagement and patchy attendance.”

The second was:

“Rather than seeking to import education into youth prisons, schools must be created for detained children which bring together other essential services, and in which are then overlaid the necessary security arrangements.”

The Taylor report pointed out the absolute importance of integration, not only of education but of a wide variety of services within the work of these schools. Health, social care, and services providing reintegration following custody are required within the school and not external to it. These are services that local authorities currently provide. Following the logic of local authority statutory provisions, particularly those on the duty to safeguard and promote the welfare of their children and the need for a new form of integration, there is much that local authorities can offer.

The then Minister, the noble Lord, Lord Wolfson, said in January:

“I accept that the Government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision … local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here.”—[Official Report, 10/1/22; cols. 825-26.]

It is against this strange backdrop of legal rights and government policy going in different directions that I look at government Amendment 76. It states that

“where the educational institution … is to be a 16-19 Academy” and not that all secure schools are to be academies. Can the Minister confirm that the legal position on local authority involvement in secure schools has not altered since the Government’s statement to this House in January?

Engagement with local authorities in the work of secure schools or academies has always been seen as essential and welcome, so it is very concerning that proposed new subsection (2A) in Amendment 76 rules out consultation with local government or anyone else and makes consultation with local government only a possibility—and this for a part of our democratic structure which has been stated to have great value by the Justice Minister, speaking in the Chamber in January.

Restricting consultation with a local partner who has the statutory role for the provision of some services in relation to secure schools seems quite a bizarre approach. The words in the government amendment are quite clear: it will be a consultation on how the proposer of the secure academy should co-operate with local partners, and those are the local partners who the proposer of the secure academy thinks it appropriate to consult. There is therefore no duty for them to consult the local government of the area.

I would value an explanation of the ban outlined in proposed new subsection (2A)(a). I recognise that the siting of a secure academy is potentially controversial, so it appears that the rationale for the first part of the government amendment is to avoid normal planning requirements. If that is the case, I remind the Government of their failed policy to cut out local residents’ engagement when housing, building height extensions and other developments were proposed. Some government Ministers even suggested that this policy led to the Liberal Democrats winning the Chesham and Amersham by-election—oh joy.

These amendments seek to provide clarity. Although I recognise the difficulties of planning and siting a secure school as a principle—at the one in which I taught, local residents were extremely unhappy that they had these great thugs being taught near them—the Government should not ride roughshod over the rights given to local people through their local authorities. These amendments seek to recognise the importance of local government, in both the services it can provide and the representation of local interests that is part of its democratic mandate. I hope the Minister can clarify the Government’s intentions in respect of these matters, and as underlined in our amendments, as they affect secure schools or academies.

This is way above my pay grade, but I have been in the Minister’s position before. I humbly suggest, given the formidable opposition on her own Benches to the Bill, which threatens to undermine that of the opposition—we are doing our best, for goodness’ sake, but when it comes from the Conservative Benches it is quite difficult to match it—that she goes back to the department to put a stop on this Bill. We currently have three more days in Committee. I suggest they could be put to much better use than tearing the Bill apart.

Photo of Lord Baker of Dorking Lord Baker of Dorking Conservative

My Lords, the amendments my noble friend has tabled really show how interconnected all the Bill’s clauses are. You cannot envisage one without the other; they are interdependent. It is very difficult to move an amendment to any one clause that does not affect other clauses.

I said last week that I would try to find out from our legal advisers the extent to which the Bill may threaten the charitable status of all schools. I had a letter this morning from our advisers, Stone King, one of the leading education law firms. I will read it to the Minister so that she and the officials can reflect on it:

“The Bill sees, accordingly, a material shift from a contract-based system to one which is statutorily controlled.”

At the moment, the relationships between schools and the Secretary of State are as a contract: it is an agreement, and both sides can change it. It is subject to contract law. The Bill would change that to statutory control.

The letter continues:

“It also introduces much more stringent termination powers which include not only existing termination rights, but also the ability for the Secretary of State to flood the board of an academy trust.”

The Secretary of State has never had that power in the past, ever since 1870. This is a fundamental change—a major shift of authority from local authorities to Whitehall. Local authorities were responsible for closures in the past, but then they had checks and balances: before a closure could be decided on, they would have to check with the local community, local councillors and parents. There are now no such balances.

The letter continues:

“It was considered that such flooding rights were incompatible with the independence of an academy trust as a charitable company and that a contractual breach should lead to a contractual remedy—not to seek to control … the academy trust itself.”

This matter has been dealt with by the Charity Commission in the past, so I ask the Minister to reflect on, or find out from her officials, what the exact position is. The position was that, before 2010, the Charity Commission was very concerned about the independence of schools, so it made them all statutory charities. That gave them certain very clear rights. The letter states:

The Charity Commission had doubts, in the late 2000s, about the charitable status of academies given the controls which could be exercised then by the Department for Education and Skills … This led to the provisions of the Academies Act 2010 which made academy trusts charitable”— all the schools in our country today are statutory charities. The letter continues:

“It would be very hard to see how the Commission would be at all comfortable with these additional restrictions, and it would be interesting to understand whether there has been any dialogue between the DfE and the Charity Commission”.

If the Minister says that there has not been, I intend to write to the chairman of the Charity Commission tomorrow.

This is important because, as the letter continues:

“A further point arises with regard to HMRC, and whether HMRC would be willing to continue to afford charitable tax breaks to academy trusts in circumstances where they are so very tightly controlled that their charitable status is in doubt. We wonder whether this point has been considered, and whether the views of HMRC have been sought on this point. Clearly, the removal of charitable tax breaks would have a significant and detrimental impact” on all schools.

I raise this now only because this is such a fundamental point. It is saying that the 18 clauses could challenge the charitable status of a school, in which case it would lose the tax breaks. I ask the Minister and the officials just to take all this on board. When she winds up, perhaps she will be able to tell me whether the Charity Commission has approved the proposals in the Bill.

Photo of The Bishop of Bristol The Bishop of Bristol Bishop 3:45 pm, 13th June 2022

My Lords, I speak in place of my colleague, the right reverend Prelate the Bishop of Durham, who unfortunately cannot be present today. I declare his interest as chair of the National Society.

I rise briefly to welcome Amendment 40 in this group, which offers real clarity on the issue. We welcome the recognition it shows that the religious body must be involved in giving an interim trustee notice to the proprietor of an academy school with a religious character. We are grateful for the Minister’s continued work on this and hope this might provide a little encouragement at this point.

Photo of Lord Knight of Weymouth Lord Knight of Weymouth Labour

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

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

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

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

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

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

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

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

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

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

Photo of Lord Agnew of Oulton Lord Agnew of Oulton Conservative

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

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

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

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

Photo of Baroness Berridge Baroness Berridge Conservative

My Lords, I want to raise a point probably connected to the comments of my noble friend Lord Baker, which may help my noble friend the Minister. I raised on the first day in Committee the consideration of the legal vehicle that we are dealing with here, which is potentially affected when you move from the bilateral to the unilateral, and any implications for not just charitable status but the role of charity trustees, as well as that of company directors, as in most cases these are charitable companies. I know that my noble friend intends to write to me, but it may be that the comments that follow from that have a connected purpose to what my noble friend Lord Baker has said in relation to any effects on the charitable purpose as well as the vehicle. We are dealing with a legal entity, and the implications for that need to be fully considered in the change from a bilateral contract to the unilateral situation that my noble friend proposes.

Photo of Lord Nash Lord Nash Conservative

My Lords, I declare my interests as a chair of an academy trust and as a trustee of the Education Policy Institute.

I shall give a little background on trustees and their role and recruitment. When I became an academies Minister in 2013, it was clear that the very good initiative started by the noble Lord, Lord Adonis—who I see is not in his place—to find academy sponsors, such as myself and my noble friends Lord Agnew and Lord Baker, had been put very much on the back burner by officials in the rush to academise; it took a very long time to warm these people up and it was a long process. I said I did not care how long it took to warm these people up; we must have this process. I did not care if we got chucked out of government and the Labour Party came back in and used all the people that we had found—good luck; it is a very noble purpose.

As it happened, we did not find too many nutters like myself and my noble friend Lord Agnew who were prepared to go from a standing start to being full academy sponsors in one move, but we found hundreds, if not now thousands, of people who were prepared to go on the boards of multi-academy trusts as non-executive directors, pro bono, to serve a very good public purpose. I wonder how many we would have found if they knew they could be chucked out by the DfE at its whim.

Photo of Lord Addington Lord Addington Liberal Democrat

My Lords, it is really something for me to say that I agree with most of the noble Lords opposite on this. It is a very odd Bill and a very odd process that we are going through today.

One question that comes to mind when we look at all these amendments is this: could the Minister give us a rough idea where the Minister’s power to make a decision without consultation has been increased or decreased? If there is anywhere that that power has been decreased, I would be very glad to hear about it. But if it is only the case that “We will make something without going through a consultation process”, surely that shows up one of the major flaws in the Bill.

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Opposition Whip (Lords), Shadow Spokesperson (Business, Energy and Industrial Strategy and International Trade) , Shadow Spokesperson (Justice)

I echo the comments that have been made in support of my earlier intervention. It seems extraordinary that we are grouping these amendments together. I have not been in this House for too long but my understanding is that this is quite unusual.

One example is government Amendment 148, introducing the new offence. One of the jobs I have had was shadow Justice Minister, and I know that something like this would have been subject to a lengthy debate in and of itself were it part of a Bill that the justice team was proposing. I refer noble Lords to paragraph 1(3)(a) of new Schedule A1, as introduced by Amendment 148, about new childcare and behaviour orders. I think these are a very good idea; if you are found to have been running an illegal school, there should be restrictions on what you are able to do in future. We are not arguing with the principle of that, but paragraph 1(3) of the new schedule says:

“An education and childcare behaviour order is an order which, for the purpose mentioned in sub-paragraph (2) … requires the defendant to do anything specified in the order”.

I cannot find anywhere—perhaps the Minister could direct me, because it is not impossible that I have missed it—an example of what is specified in the order. That is a very broad definition that gives courts enormous freedom. I would like to understand better what Ministers have in mind for courts to be able to do. That is just one example of where this really does not fit with some of the other issues that we have just been debating regarding secure academies and charitable purposes.

I would like a commitment from the Minister that, should there be further government amendments that are not minor or technical—there is no way that you could describe this amendment as either—she will ensure that they are tabled in a timely manner and in a way that facilitates consideration in your Lordships’ House. I feel that we are not sufficiently able to do our job as well as we would like today, given the way that this has been done.

I echo the comments from the noble Baroness, Lady Garden, about secure schools, from my noble friend Lord Knight about the independence of trustees, and from the noble Baroness, Lady Berridge, on charitable purposes.

To be positive towards the Minister, I very much welcome the tone of the comments that she made at the end of our deliberations last Wednesday, when she said she would reflect and listen very hard to what the House was telling her. I wonder if there is anything she can say today, before we embark on subsequent groups of amendments, that we would find useful about how far she has got with those deliberations.

Photo of Baroness Barran Baroness Barran The Parliamentary Under-Secretary of State for Education 4:00 pm, 13th June 2022

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

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

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

Photo of Baroness Barran Baroness Barran The Parliamentary Under-Secretary of State for Education

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

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

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

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

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

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

Photo of Baroness Chapman of Darlington Baroness Chapman of Darlington Shadow Minister for the Cabinet Office, Opposition Whip (Lords), Shadow Spokesperson (Business, Energy and Industrial Strategy and International Trade) , Shadow Spokesperson (Justice)

I am grateful; that is helpful. Does the Minister intend to publish any guidance or examples? At the moment there is nothing, as drafted, to say whether these orders will be about someone’s professional ability to engage in running an illegal school or if it will impinge in other areas of their life and their contact with children. There is nothing to give us any guidance about this at the moment.

Photo of Baroness Barran Baroness Barran The Parliamentary Under-Secretary of State for Education

I undertake that we will provide guidance—in inverted commas—whether that is formal guidance or setting out examples in a letter as the noble Baroness suggests. I will need to check with colleagues as to the most appropriate way to do that. I am happy to undertake that we will provide a full explanation, as she rightly requests.

My noble friend Lord Baker, the noble Lord, Lord Knight, and others, questioned whether the measures in the Bill would affect an academy trust’s charitable status. I am pleased to confirm that the Government have engaged with the Charity Commission about the intervention powers, including the termination provisions in the Bill. There are currently no concerns about the interaction of these powers with the independence of charities. My noble friend Lady Berridge raised a very pertinent point again. I reassure her that her letter is in preparation as I stand here.

Through the schools White Paper, the Government set out their vision to deliver real action and level up education, supporting children, empowering teachers and school leaders and enabling parents. This Bill and these amendments help deliver that vision by underpinning it with legislation focused on improving the systems and standards of schools. I commend the amendments in my name and ask the noble Baroness, Lady Garden, not to move the amendments in the name of the noble Lord, Lord German.

Amendment 30 agreed.

Clause 2, as amended, agreed.

Clause 3: Academies: power to apply or disapply education legislation