A requiem to the Schools Bill in three parts – Part 1

The Schools White Paper Opportunity for all: strong schools with great teachers for your child (£) was published on 28 March 2022. Several aspects required Parliamentary legislation before implementation.

The Queen’s Speech on 10 May 2022 confirmed the Government’s intention to legislate and the following day the Schools Bill was published.

There was debate on eight days during the Summer in the House of Lords. The Bill was criticised for the excessive powers that would be given to the Secretary of State for Education over academies and also the local authority role in maintaining a list of home educators. Government-supported amendments resulted in a major part of the Bill being withdrawn for further work over the Summer. By September, with the Truss administration installed, there were press stories that the bill would not proceed further.

This is the first in a three-part blog series exploring the progress and future of the Bill:

1. This part looks at the new Secretary of State’s announcement on the future of the Bill, parliamentary procedure and two examples of how education legislation has been handled.
2. Part 2 looks at the provisions in the Schools Bill, what might be salvaged without further legislation and what happens to those areas where legislation was expected.
3. Part 3 asks why it is difficult to legislate for some education issues?

Secretary of State before the Commons Education Committee

The new Secretary of State for Education (Gillian Keegan and the fifth since the Bill was introduced) confirmed the Bill would not proceed in evidence to the Commons Education Committee on 7 December 2022. Citing the “need to provide economic stability and tackle the cost of living means that the parliamentary time has definitely been reprioritised.” She said:

“I can confirm that the Schools Bill will not progress in the third session”. [However] “we do remain committed to the very many important objectives that underpinned the Bill, and we will be prioritising some aspects of the Bill as well to see what we can do”.

She also noted:

“A lot of the Schools White Paper is being implemented and did not require legislation in many cases, but we know that there has been interest, particularly in a couple of areas around legislating for children not in school and a register. […] Let us just say, we have heard your concerns and it is definitely a priority.

She went on to say about one provision in the Bill (school funding):

“We can go quite a long way to achieving our aims to push this through non-legislative steps”.

Parliamentary procedure

Parliamentary Bills are rarely withdrawn. The main reason is that the proposer of the Bill has to propose a motion to withdraw the Bill which will then be subject to debate and the proposer has to explain why the Bill needs to be withdrawn.

End of Parliamentary Session

The most common reason for a Bill not making it to the statute book is that it has run out of time before the end of a Parliamentary session when Bills fall except for Commons Bills where a motion to allow the Bill to continue in the next session was passed when the Bill was first introduced.

Governments, especially because of its control over the Commons timetable, can usually plan to get its Bills enacted. However, this is not always the case especially when a general election is called. Examples include:

• The School Transport Bill in the 2004-05 session (although most of the provisions were brought back after the 2005 General Election and appear in the Education and Inspections Act 2006).
• The Local Government Finance Bill 2017 with its fairer funding provisions which fell at the 2017 general election.

See the LGIU briefing (Local Government Finance Bill 2017) and the post-election blog for more context. The proposals remain dormant. They are not included in the Levelling-Up and Regeneration Bill.

Parliamentary scrutiny

Another reason for a Government bill not making it to the statute book is that an Opposition amendment is successful which leads to a Government rethink.

An example is the Education (Corporal Punishment) Bill in 1985. The Bill was designed to meet a European Court of Human Rights (ECHR) judgement that would permit corporal punishment in schools only if approved by the parent. The Bill passed through the Commons only to meet proper scrutiny in the Lords.

The argument that it would be impossible to administer in schools where a punishment depended on the views of a pupil’s parents won the day at a vote at the Lords Bill’s Report Stage.

The Government did not proceed with the Bill and the following year the Education (No. 2) Act 1986 banned corporal punishment in publicly provided school provisions in England, Scotland and Wales (which included independent schools in the then Assisted Places Scheme).

Length of the Parliamentary Session

The Secretary of State for Education gave the need to reprioritise the Parliamentary timetable as a reason for not proceeding with the Schools Bill. The current session was expected to end in May 2023, 12 months after the 2022 Queen’s Speech.

The 2022 speech was judged to be ambitious in terms of the number of Bills the Government wanted to be approved by Parliament. During the current session been three prime ministers and widespread changes of responsible ministers.

There is also a procedural problem with a King’s Speech before the King is crowned on 6 May 2023. A rumour circulating in Westminster is that the King’s Speech will be delayed until at least late October 2023 – giving at least three more months of Parliamentary time to get legislation on the statute book.

The naming of Parliamentary Bills

If the Government wished to proceed with a limited number of proposals in its Schools Bill, it could produce a Schools (No. 2) Bill. This has the advantage of not having to remove by amendment and debate those provisions in the Schools Bill on which internal Government consideration is ongoing or which parliamentary debate might delay the Bill.

Naming bills by number used to be common. What became the Education (No. 2) Act 1986 started off as the Education Bill in the House of Lords. However, a shorter measure dealing with changes to the pooling arrangements for local authority maintained further education (which in 1986 included the 35 polytechnics) started later in the Commons as the Education (No. 2) Bill. This shorter Bill got to the statute book first and was named the Education Act 1986. So, when the first Education Bill in the session reached the statute book it was named as the Education (No. 2) Act 1986.

Education for All Bill 2016

The history and demise of this Education for All Bill in 2016 are explained in my blog, Untangling the next steps in DfE education legislation (I will return to this in Part 3). The relevance to Part 1 is that in 2016 the Government realised that getting the academies provisions in the draft Bill (which has not so far been made public) would be too controversial for the time and circumstances and dropped those provisions in favour of the limited provisions on skills which it considered necessary to get on the statute book in the Parliamentary session. And yes, I do think the controversial clauses 1 to 18 in the original Schools Bill of 2022 were drafted in 2016 and nobody in Sanctuary Buildings asked in 2022 why the Education for All Bill did not proceed. Institutional memory in organisations can be very important.

School Teachers’ Pay and Conditions Bills in the 1990-91 session

The political circumstances leading up to why in the 1990-91 parliamentary session there was both a School Teachers’ Pay and Conditions Bill and a School Teachers’ Pay and Conditions (No. 2) Bill are similar to current events.

A bit of history

A. L. Fisher, President of the Board of Education from 1916 to 1922 was committed to improving the pay and working conditions of teachers especially given the loss of male teachers during the First World War. At the time, pay and conditions of service were determined locally by the local authority and church employers in negotiation with teacher representatives, sometimes on a school by school basis. In 1919, Fisher asked the 1st Viscount Burnham to convene a committee to enable the local authority employers and representatives of the teacher employees to negotiate pay and conditions at a national level. Initially, decisions of the Burnham Committee (as it became known) were voluntary; employers did not have to implement negotiated decisions. The Burnham Committee was given a statutory basis and increasingly central government was able to influence decisions although at its heart there was still a need for employers and employees to negotiate and agree.

During the mid-1980s, as public spending tightened, an agreement was not achieved and widespread industrial action occurred in schools. As a temporary measure, the School Teachers’ Pay and Conditions Act 1987 implemented a pay settlement. The Government gave a commitment that following consultation on a new pay determination mechanism would be created involving employer and employee negotiation admittedly in a tighter framework set by central government.

School Teachers’ Pay and Conditions Bill

Consultation occurred, and the Queen’s Speech, on 7 November 1990, committed the Government to introduce a Bill “to establish new machinery for negotiating the pay and conditions of school teachers in England and Wales”. The School Teachers’ Pay and Conditions Bill was published on 15 November 1990.

November 1990 was a difficult time for the Governing Conservative Party. A reshuffle following the resignation of Geoffrey Howe as Foreign Secretary over the approach to Europe by Prime Minister Margaret Thatcher resulted in Health Secretary Ken Clarke switching jobs to Education on 2 November.

The new leader of the Conservative Party, John Major, was confirmed on 27 November 1990 during the Second Reading of the School Teachers’ Pay and Conditions Bill. Opposition speaker, Jack Straw, noted that the period between the Bill’s publication and second reading was “a political lifetime ago” but Ken Clarke committed himself and the three candidates in contention to be the next Prime Minister to the Bill’s provisions.

“The Government’s decision has been to restore teachers’ negotiating rights. That has been welcomed by the employers and most of the major teacher unions.”

The Bill was granted a second reading. A committee stage was held and the remaining stages of the Commons consideration of the Bill were planned for early 1991.

School Teachers’ Pay and Conditions (No. 2) Bill

However, it was not to be. The School Teachers’ Pay and Conditions (No. 2) Bill was published on 19 April 1991 with a Commons second reading on 29 April. Gone was the negotiating body and in its place a review body. Perhaps led by his experience as Secretary of State for Health, Clarke said:

“The review body for nurses and midwives […] has transformed the atmosphere in which pay and conditions are determined […] and enhanced professionalism”

Reasons given by Clarke for the change of policy include:

“[…] it will bring an end to industrial action in our classrooms”

And the new Prime Minister (John Major):

“On taking office and previously, underlined his personal commitment to tackling the problem of the morale of teachers—raising the self-esteem of the profession—and addressing questions of professional status.”

Conclusion

If the Government wishes to get the uncontentious issues in the Schools Bill on the statute book this Parliamentary session, there is still time with a Schools (No.2) Bill. But to use Jack Straw’s words, the first Bill was published “a political lifetime ago”.

The issue of pay determination in the public sector is, as I write, a live issue and worth a separate blog. The biggest three teacher associations (NEU, NASUWT and NAHT) are balloting on strike action with the ballot closing on 13 January 2023. Local government remains the statutory employer (or effective employer) of approximately 200,000 teachers in England. Arguably, the review body system has served the school system well for 30 years and was supported by the Labour Government, who made improvements to the legislation in the Education Act 2002.

But there remain loose ends such as the role of the Burgundy book, teaching assistants, and now the increasing number of teachers in academies. Academies do not have to comply with the pay determination mechanism. Perhaps these issues should be addressed in a Schools (No. 2) Bill if there was Parliamentary time.