My Lords, I have two clause stand part amendments, but also added my name to the amendments from the noble Lord, Lord Addington, and the noble Baroness, Lady Meacher. Fleetingly, when I heard the noble Lord, Lord Baker, suggest that a Minister could, at the stroke of a pen, abolish grammar schools, I warmed towards Clauses 1 and 3, but, as he suggested earlier, leaving aside the educational issues and the future governance and oversight of academies, some constitutional issues are involved.
As the noble Lord, Lord Addington, said, we cannot ignore the reports of our own Select Committees. The Delegated Powers Committee was clear that it issued new guidance to departments following its report where it said that it
“expected that bills introduced in the current session would reflect the principles set out in our report and revised guidance”.
This was a Select Committee of Parliament informing departments how legislation needed to be drafted in future. It was not a suggestion; it was a report of a distinguished Select Committee setting out how departments needed to legislate in future. It said that the principles were,
“first, that primary legislation, and the powers conferred by it, should be drafted on the basis of the principles of parliamentary democracy (namely parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament); and, second, that the threshold between primary and delegated legislation should be founded on the principle that the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegation”—
through secondary legislation. This appears to have been totally ignored by the Minister and her department. Why is that, and what factors did her department take into account when sending instructions to parliamentary counsel? Had it even looked at the new guidance set by your Lordships’ Select Committee? I very much doubt it.
In its recent report, the Delegated Powers Committee said that
“it would be possible for the Bill to set out the standards that apply to academies coupled with a power to amend them where speed and necessity really did require this to be done by regulations”.
In its note to the committee, the department essentially said, first, that it might need to act quickly and therefore Parliament could not adapt if standards needed to be
changed and, secondly, that it was all too technical and detailed for Parliament to consider. Frankly, as the committee says, those are ridiculous arguments, because there are any number of ways in which Parliament can deal with urgent matters quickly. The idea that we cannot deal with technical matters in legislation is shown to be ludicrous given the technical details that we have in Bills day after day. I refer the Minister to the Procurement Bill, which is going through your Lordships’ House at the moment. It is extremely technical in detail, but I have great confidence that your Lordships’ House will be up to dealing with it.
The Minister said in relation to Clause 1 that the Government are not aiming to restrict freedoms, but they cannot speak for future Secretaries of State. The other thing she said was, “Don’t worry, this is all going to be sorted out through regulations, of which Parliament has oversight”. However, as the noble Lord, Lord Addington, asked, what can we do when we have regulations? We can have a debate for a maximum of two hours. We can make our points. We can pass a regret Motion, which has absolutely no effect. So I am afraid that that offer does not amount to very much.
Clause 3, which we have not yet discussed—I realise that there are amendments to it—is in a sense the most extraordinary use of a Henry VIII power. It allows a Minister to disapply any educational legislation from any school or other educational institution. It is the most remarkable, open-ended Henry VIII clause I have ever seen. As the Delegated Powers Committee said:
“It is not good enough to say that ministers, rather than Parliament, should be able to make law because ministers can be responsive to the needs of the academy trust system. So can Parliament.”
That ought to be Parliament’s role.
As noble Lords said in the debate on the previous group, this is a major structural educational reform. The noble Lord, Lord Adonis, is right: it is displacement activity because clearly the Government have not thought out what standards they want. They certainly do not know what structure of accountability they require in relation to academy trusts. That work has got to be done. Presumably, the department pulled something out. Departments always have legislative requirements. Every department always has a Bill up its sleeve—in the case of the Department of Health, in my experience, it always has three or four Bills up its sleeve—but it really is not good enough to say, “Everything will be all right. A lot of the standards are already there, we can bring a regulation and we are doing a review on the structure of governance”. We really cannot let this go.
I see that the noble and learned Lord, Lord Judge, is here. He made a very telling intervention in the debate on the Queen’s Speech when he referred to the growing imbalance between Parliament and the Executive. He referred to the two Select Committees’ reports and concluded—I am at risk of quoting Judge to Judge—by asking
“what is the point of us being here if … we never do anything … except talk?”—[Official Report, 12/5/22; col. 130.]
He hinted that, the next time a Bill comes along with a Henry VIII clause, such as Clause 3, that has not been given careful explanation in advance, we should “chuck
it out”. I do not think he expected such a Bill to come along three weeks after he made those remarks but, my goodness, the argument for chucking Clauses 1 and 3 out of the Bill is very persuasive.
5.45 pm