Education (Guidance about Costs of School Uniforms) Bill — House of Lords, 2021-04-16
Topic: Education
David John Maclean (Conservative, Centre-right): My Lords, my amendment would ensure simply that the statutory guidelines could be scrutinised by Parliament in the lowest form of scrutiny we have: namely, the negative procedure. My amendment could not be more simple or reasonable. It says simply that the Secretary of State must lay the guidance before Parliament and may bring it in by the negative procedure. That procedure, as we all know, allows the guidance to take immediate effect, but would permit parties in Parliament, if so minded, to debate it. Just as with the thousands of other SIs which pass through here every year, there would probably be no debate, no objection and no vote—but at least our excellent Secondary Legislation Scrutiny Committee would get a chance to have a look at the regulations. That is all my amendment seeks I criticised the Bill at Second Reading on these grounds, and also because we had not seen a draft of the guidance that we were being asked blindly to rubber-stamp. Well, I am able to give some mild praise to the Minister before I start on some mild criticism. The department has now published the draft guidance, which is very helpful for all of us. I appreciate that it may change and that more people and organisations may have input into it, but this House has usually demanded, and rightly so, to see any draft guidance or draft regulations that we are being asked to take on trust For the avoidance of any doubt, I thoroughly approve of the Bill and am not opposed to it. Indeed, if there was an opportunity to have the other place deal with our amendments before the end of this Session, I would push this amendment to a vote, and I would put down another amendment insisting that all schools create, either by themselves or through parents or a charitable trust, a system for used and second-hand uniforms. As a soldier in a Highland regiment, the only bit of new kit I had, out of scores of items, was boots and socks. Everything else was used, cleaned, repaired, refurbished and reissued—and by God we were proud to wear it. The only thing I rejected was second-hand long johns—I assure noble Lords that they do not want to wear second-hand long johns from a Scottish soldier When I spoke at Second Reading, I said that I was speaking in a personal capacity and not as the chair of the Delegated Powers Committee. Since then, the committee has met and published a report on the Bill, and it has identified, in its usual and meticulous way, the inappropriate delegated powers in the Bill that my amendment seeks to address. I can tell the Committee that I had no part in those decisions or discussions. I was absent when the Delegated Powers Committee approved the report, so I have not influenced its decision. However, I am informed that the committee wholeheartedly approved of the line that I took at Second Reading: namely, that the guidance should be subject to some simple parliamentary scrutiny Since Second Reading, the department has produced a delegated powers memorandum, and I am grateful for that. It should have been done in the first place, but the Department for Education is not unique in that failing—not by a long shot. The department makes four justifications for the guidance not being subject to the negative resolution procedure. First, it says that the guidance will be drafted after consultation with parents, schools and stakeholders, and taking into account comments made by parliamentarians as the Bill progresses through Parliament. But the Delegated Powers Committee says, "That is all very jolly good, but there is no justification for the finished guidance not then being scrutinised by Parliament if Parliament wishes to do so" Secondly, the memorandum states: "The Department produces a large amount of detailed and technical statutory guidance to support schools and the wider education sector", and, since that has not been subject to parliamentary scrutiny in the past, the new guidance is simply consistent with past procedure. The memorandum uses the phrase: "Parliament has already determined that guidance should not be subject to Parliamentary scrutiny." Has Parliament actually determined that? Correct me if I am wrong, but did Parliament ever make a decision in principle that it would not scrutinise any guidance from the DoE? Is it not the case that guidance has already been issued, and Parliament has been unable to challenge it—unlike as we are able to do today? It is more an act of omission than a deliberate act of commission not to scrutinise guidance from the department. In any case, as the Delegated Powers Committee report points out, what was done in the past is irrelevant: each Bill should be considered on its own merits, and this Bill deals with nothing other than statutory guidance Thirdly, the department’s memorandum says: "The statutory guidance is not equivalent to … Education Codes of Practice", which are "broad and extremely detailed texts which … have many aspects which are controversial and may require debate and amendment." It says that this is a "very limited document". Well, the Delegated Powers Committee says that the fact that the guidance may or may not resemble a code of practice does not mean that parliamentary scrutiny of it should be ruled out. The Bill is concerned exclusively with a certain type of guidance, yet Parliament has been asked to sanction the production of guidance that will never be required even to be laid before Parliament It may be a limited document, but it is far from non-controversial. We have all seen the excellent briefing from the Schoolwear Association, and it strikes me that there will be strong arguments made by different parties about branded items and single supplements. Indeed, there were quite firm and differing views expressed at Second Reading in this House on branding and single suppliers—indeed, seeing the noble Earl, Lord Clancarty, in his place, about the fact of having a uniform in the first place. While we may all instinctively think that multiple suppliers will deliver cheaper items, that may not necessarily be the case, and I can envisage legal challenges arising from various quarters. I simply say that it cannot be right that the courts will end up interpreting legal guidance that Parliament will never have seen Fourthly, the department says that the guidance will be published in such a manner that it will be accessible to all who need to see it. I should ruddy well hope so, but that has nothing to do with letting parliamentarians have a look at it, even in the most minor of parliamentary procedures, before it is published. If an entire Bill can be dedicated to the cost aspects of school uniforms, the resulting guidance is important enough to be subject to a parliamentary procedure. I am glad that the memorandum does not seek to make the point, which was made at Second Reading, that the guidance cannot be approved by regulations because it would have to be amended regularly. The department has kindly confirmed, in a Written Answer to me, that the current guidance has not been amended once since 2013, so there is no justification for resisting parliamentary scrutiny on the grounds that the guidance would have to be constantly amended and brought before Parliament Finally, I will make one observation—or rather, a political guess. I think the House will want to see more and more of our homegrown regulations and guidance. Until 31 December 2020, the Government could bounce through thousands of regulations implementing EU law and we all knew that it was pointless challenging them, since we had to implement them verbatim. All that has changed. I suspect that the whole voracious judicial review industry is waiting to challenge every regulation made by Ministers, because the Government will no longer have the watertight excuse of saying, "No point taking us to court, my learned friend. It’s not us, guv, it’s the EU" As we make our own laws, so this House will want to challenge more of our own laws. The debate on this little Bill and guidance is just a taster of what I foresee, and what I welcome, happening in Parliament when this House is back in full physical mode and our 850 Members are looking for things to do. However, that is a more philosophical debate for another day I end with the conclusions of the Delegated Powers Committee report: "The fundamental problem with the Bill is that the statutory guidance affords the maximum of discretion to the Government with no opportunity for parliamentary scrutiny. Accordingly, we recommend that the guidance should be subject to parliamentary scrutiny, with the negative procedure being appropriate in this instance." I look forward to my noble friend the Minister’s response and I beg to move.