Education (Environment and Sustainable Citizenship) Bill [HL] — House of Lords, 2021-12-03
Topic: Education
David John Maclean (Conservative, Centre-right): My Lords, I rise to move the little amendment in my name and, since the noble Lord, Lord Knight of Weymouth, has also signed up to it, I can cut my speech down from one hour to no more than 45 minutes. I hope that I will not be too patronising in delivering it. This is a simple amendment. Clause 1(4) of the Bill—which I support—as it stands at the moment, states: "The Secretary of State must give guidance about the provision of education" After "must", I wish to insert the words "by regulations" —because, if one looks slightly further on, the proposed subsection (3) in Clause 1(4) says: "The governing body of a maintained secondary school must have regard to guidance under this section." I am moving this amendment in a private capacity but—for the next couple of weeks, in any case—I am the chair of the Delegated Powers Committee, which looked at the Bill, as it looks at all Private Members’ Bills. We do not change our guidance for private Members any more than we do for the Government. When we look at Bills, our normal rule is that, where guidance is advisory, we suggest that it should be laid before Parliament but does not have to be debated—it does not need the negative or the affirmative procedure. But when it is guidance that one "must have regard to"—as we increasingly see from government these days—we say that, in effect, it is almost mandatory, and there are legal consequences for the person or body if they do not have regard to it In our report, we say: "Although a duty to have regard to statutory guidance does not imply a duty to follow it in … all respects, we have in recent years observed that a person or body required by statute to have regard to guidance will normally be expected to follow it and will in practice normally do so unless there are cogent reasons for not doing so. And yet this guidance is subject to no parliamentary scrutiny at all." We are therefore suggesting that the Secretary of State makes the guidance by way of regulations that are subject to the negative procedure. That is not a heavy burden on the Secretary of State or the department. As we know, most negative-procedure SIs go through on the nod; they are very seldom debated or prayed against. I cannot imagine any side of the House wishing to pray against guidance in this regard, but the power exists there, if the House wishes to exercise it in certain circumstances I will give noble Lords one more minute of technical stuff. How would this actually take effect, when I am only inserting the words "by regulations"? I am advised by our lawyers that the guidance would in fact be covered by Section 210 of the Education Act 2002, which provides that: "Subject to subsections (5) and (6), a statutory instrument which contains any order or regulations made under this Act by the Secretary of State and is not subject to the requirement … that a draft of the instrument be laid before and approved by a resolution of each House … is subject to annulment in pursuance of a resolution of either House of Parliament." Merely putting in the words "by regulations" would mean that any guidance that the Secretary of State produces on this measure in future would be caught by that provision and subject to the negative procedure. In essence, that is it I am very grateful to the noble Lord, Lord Knight of Weymouth, for signing up to the amendment. I do not think that we will have a highly contentious debate for the rest of the afternoon.