Children’s Wellbeing and Schools Bill

Committee (10th Day) (Continued)

Clause 36: Expanding the scope of regulation

My Lords, before we were so rudely interrupted for lunch, I was going to speak to Amendments 430 and 436 in this group. Amendment 436 is the substantive amendment relating to the Independent Schools Inspectorate and Amendment 430 is the consequential amendment. Before I begin, I thank the noble Baronesses, Lady Berridge and Lady Spielman, for their support for these amendments.

The amendments are very much probing amendments to test the department’s thinking on the work and performance of the Independent Schools Inspectorate. The ISI is accountable to the Department for Education. If anybody—a parent, a pupil or school—were to have a complaint about the work of the ISI, they would, having exhausted other mechanisms, be able to go to the Department for Education and ask it to look into the way that an inspection has taken place, and potentially, I suppose, seek some findings or ask any other questions that they might have about the work of the Independent Schools Inspectorate.

I would be grateful to hear from the Minister, if she is able, in summing up or perhaps by writing to me, how confident the Department for Education is in the work and performance of the Independent Schools Inspectorate, and how involved the Department for Education gets on an annual basis, particularly in relation to complaints about the ISI. I would be interested to know how many complaints are made and how the department handles them.

School inspection, as we are going to debate in this group and the next, is extremely important and often very contentious. I am grateful, as I say, for the support of both noble Baronesses, but particularly that of the noble Baroness, Lady Spielman. As a former Ofsted chief inspector, she has experience unequalled by many in this Chamber in relation to school inspection. We have to look only at the headlines generated this week by the Government’s proposed new Ofsted handbook to see how strongly everybody involved in education feels about school inspection.

Accountability is essential for parents, to know how their children’s school and education setting is doing, for pupils and for the schools themselves. School accountability is absolutely critical—I say this having been in the Department for Education, and former Ministers such as the noble Baroness, Lady Berridge, may agree with me—for Ministers and for officials in the department. If there is an issue—particularly in relation to safeguarding or the way a school is being run—the answer, correctly, is to send in Ofsted, in the case of maintained schools or academies, to check what is going on. The department and Ministers will then accept the reports that they are given. The strength of our accountability mechanism is a reason why we have such good schools in England.

For me, the particular focus, and the reason I wanted to table this amendment, is that I am interested in the ISI’s inspection in relation to the role of governors and the quality of governance of our schools, which is of critical importance. Governance is not necessarily the same as leadership and management, and yet those phrases are often run together throughout standards and the relevant handbooks.

Had I had to rush my speech, I would not have referred to this, but given that we had a break for lunch, I will. I have checked the two frameworks and the handbooks. The Independent Schools Inspectorate handbook talks about inspectors covering a range of sources of evidence, including evidence of how those with governance responsibility assure themselves that leaders and managers are fulfilling their responsibility to ensure that standards are met. In November 2025, the proposed Ofsted handbook, which will come into force in two months’ time—I appreciate there is much debate around that—talked about a number of relevant factors. There are many, but I want to draw noble Lords’ attention to leaders and those responsible for governance understanding their respective roles and their performance in these roles in a way that enhances the school’s effectiveness. The point is that the Ofsted framework is tougher and stronger, and rightly so. It is not just asking governors and those charged with governance to look at how leaders and managers are doing—in this case we are probably talking about heads or those with senior management roles; it is asking the governors to reflect on their own performance. That is essential.

When I looked at the groupings, I thought perhaps I should ask for this amendment to be put into the next group, but, frankly, I think we have more than enough degrouping. We are about to talk in the next group about the inspection of multi-academy trusts. That is right and I will speak in support; it is probably something that many people have been calling for. The point about inspection of governance—it does not matter whether we are talking about schools, businesses or other organisations—is that, when you are inspecting something, you have to second-guess and work out who is calling the shots. In many cases, we are finding that, above the schools, there will be some kind of other body. In the case of the ISI inspection that I encountered, there was a foundation sitting above the four schools, one of which the foundation has since decided to close.

In the end, the inspectors decided to look at the performance of the individual school governing body and not the foundation governing body. It was the foundation governing body that was calling the shots and that had, I believe, overseen a woeful appointments process for one of the new head teachers. Personal experience is not necessarily the best thing to talk about in Committee when we are looking at amendments, but I could not miss this opportunity to probe the department’s thinking on this.

As I said, I believe that Ofsted does a better job, and the new framework is stronger. I would be very interested to know, in her summing up on this group, what the Minister and her department think about this. Is there any appetite for the Independent Schools Inspectorate to be brought under or for Ofsted to take on its responsibilities, so that all our young people in all our schools in this country are inspected, and that their education and the way they are governed and led are inspected to the same standard? Parents have the right to expect the same standards in all schools. If the Minister is unable to answer all my questions today, I would be very grateful if she or a colleague would be prepared to meet me.

My Lords, I will speak to Amendments 430 and 436, to which I have added my name. I am grateful to my noble friend Lady Morgan for raising this issue at Second Reading, as I have been concerned about the ISI—previously the SIS—and former inspectorates of independent schools.

There are a number of queries about function, which I will probably theme as “visibility” and “responsibility” —in particular, building on what my noble friend Lady Morgan said, visibility for the Department for Education. While there is accountability, for the department itself there is a question about regulatory function. By that, I mean: do independent schools comply with the independent schools standards? The evidence on which the department is relying to perform its regulatory role, and then its potential enforcement action, in relation to schools is dependent on the information usually obtained through the ISI, which I believe my noble friend Lady Spielman will more ably outline as something that is more akin to a peer review system than to what we know through Ofsted.

With the independent sector, there is less visibility. State schools and numerically half of the independent sector—I would say the trickier half that are not in the association—sit with Ofsted. Therefore, the visibility at the centre in England is Ofsted, directors of children’s services, local authorities because of maintained schools and the DfE itself. Because of the academy system, there is an excellent team of regional school staff who know what is happening on the ground in their area. They are usually incredibly well informed; they are in close contact with the local authority, particularly on safeguarding; and they often liaise with the regional Ofsted teams. They really have a feel. As you sit there at the centre, you know you have an arm reaching out across England.

They know whether a school is struggling, particularly a secondary school. They know, “Oh, this one’s doing really well. This one’s probably going to get into good” —they just have that feel. You sit at the centre and think about the independent sector. As my noble friend Lady Morgan outlined, parents can call in. but you do not sit there with the same confidence, particularly with regard to safeguarding. We have had all kinds of serious historic problems—which I hope are a matter of the past—in both the state and independent sectors. So you have much less knowledge of and feel for what is happening and you are there as the regulator for independent schools, in a slightly different way from the state sector.

My Lords, I shall speak to Amendments 429 and 433 in the name of my noble friend Lord Lexden, to which I have added my own. It is a pleasure to see my noble friend back in his place. In Bills such as this, his authoritative and powerful voice on issues related to independent education is extremely important, and we should heed his advice. I declare my interest as chairman of governors at Brentwood School, and honorary president of the Boarding Schools’ Association and Institute of Boarding.

As my noble friend said, these two straightforward amendments do not in any way strike at the integrity of the Bill or seek to undermine what it is setting out to achieve. They are simply practical amendments designed to ensure that, as far as independent schools, which are a vital part of the education sector, are concerned, the legislation works as effectively as possible. As it stands, under the Bill the Secretary of State has the power unilaterally to require independent schools to have regard to guidance issued by the department. This is not an onerous requirement and, like my noble friend Lord Lexden, I have no problem with the principle. Indeed, I see much merit in it. Where I have a problem, and this is at the heart of the amendment, is the tendency of guidance, over time, to acquire statutory force, particularly if the courts become involved at any point. It is therefore vital that any guidance issued has proper scrutiny and that those affected have a chance to make their views known through Parliament.

As a veteran of years of legislation impacting on the media, I know only too well that seemingly innocuous guidance can sometimes have the most profound unintended consequences, especially where regulatory creep sets in. Without being unduly bureaucratic or slowing the process down in any way, this straightforward amendment simply seeks to ensure that in three key areas of vital operational independence for schools in the sector—curriculum, admissions and examinations—there will be proper scrutiny of any guidance to ensure that it is practical, does not add unnecessary burdens on schools or encroach on their independence, and above all is future-proofed. That is what noble Lords are here to do—to scrutinise—and this amendment ensures we have a chance to do it properly.

My noble friend’s amendment is a sensible, practical, proportionate way to deal with the issue. It cuts through what appears to be a Gordian knot by making it explicitly clear that the interests of the child must come first and that experts can move to help them immediately and do the paperwork later. It does not in any way strike at the integrity of the Bill, as it does not relieve independent schools of their duties to make the material change application and meet the necessary standards laid down by government, on which we all agree. It is just saying, a child needs help, so let us get on with it and help them. I hope the Committee will support these amendments.

I would like to say a brief word about Amendments 430 and 436, in the name of my noble friend Lady Morgan of Cotes, which are aimed at bringing the inspection of independent schools by the Independent Schools Inspectorate into Ofsted. I find myself in an unusual position: I always agree with everything my noble friend says, but I am afraid I am going to have to make an exception to the rule on this occasion. I hope she will forgive me. The ISI, the creation of which was very much due to the work of my noble friend Lord Lexden, has worked well for 26 years, inspecting some 1,200 schools a year and covering around half a million children. It is also one of the approved inspectorates for overseas schools teaching a British curriculum. It is not, as I think the noble Baroness, Lady Berridge, was implying, some form of cosy cartel; it is a fully fledged independent body, regulated by the DFE, with its board and leadership team wholly independent of the Independent Schools Council, its associations and the schools that ISI inspects. Ofsted itself produces an annual report on its work. It has never found evidence that ISI is any less strict than Ofsted in its inspections—something it would surely have reported on had it found that to be the case. That would certainly be true if it ever found an issue relating to safeguarding.

Perhaps I could inform my noble friend that the oversight mechanism for ISI was first reduced a good many years ago when DFE asked it to remove the strand that involved monitoring a sample of inspections, and then it subsequently withdrew all the remaining elements. So, there is no longer any oversight model to my knowledge.

That is not the case, as I understand it, but perhaps we could speak about that afterwards.

Most importantly, the regime is effective because inspection is best conducted by experts who know the sector. The ISI is made up of people who understand how it works. That is particularly true for boarding schools, which have a very different operational model from the vast majority of schools that Ofsted inspects. The noble Baroness rightly talked about accountability, which is an extremely important point. Peer review, in this case, is the best way to produce some form of accountability, but we will have to differ on that.

ISI is also, as the noble Baroness, Lady Berridge, said, self-funding. So it is no burden on the taxpayer, which is an important point, especially in the current economic circumstances. Changing this tried, tested and effective system would be costly, placing additional burdens on Ofsted; it would be disruptive; and above all, it would almost certainly weaken standards of inspection because inspectors would be unfamiliar with the types of schools they were looking at, and therefore what issues of which to be mindful and aware.

I hear what the noble Baronesses say, but I do not believe the case for such a significant and expensive change has been made; nor, indeed, is there any clamour within the sector, or from parents and teachers, as far as I know, for radical reform of this sort. I hope the Committee will reject these amendments.

My Lords, among several interesting amendments in this group, I support in particular Amendments 432A and 434 in the names of my noble friends Lady Blackstone and Lady Morris of Yardley. My reasons are exactly as I set out in our discussion of the previous group, so I will just sum up to my noble friend the Minister that we need to have an effective grip on unregistered schools, because of the undoubted harm to education and well-being being done—by some of them only—with impunity.

My Lords, I rise to support Amendment 432A from the noble Baronesses, Lady Morris and Lady Blackstone, who spoke very well. I am sorry that the noble Lord, Lord Glasman, is not here. He spoke very movingly, but I do not believe that any group in our society should be given the right to entirely exclude themselves from mainstream British life.

I was the Faith Minister for a time. I was assiduously courted by them; they are very good at that and were charming people, but I had to fight with them to get them to speak and teach in English, let alone all the rest of a broad curriculum that allows one to function properly in our society. For the noble Baroness, Lady Hoey—I am not sure that she is here—to compare it with an easy-going Sunday school feels disingenuous. Sunday school is unlikely to be 10 hours a day, and these yeshivas are of course running for 10 hours a day, five days a week.

This is an important issue and I hope the Minister will look at it carefully, because otherwise, we will be setting a very dangerous precedent.

My Lords, I add my support to what my noble friend has just said, and the comments made by the noble Baronesses, Lady Morris and Lady Blackstone. It is a matter of balance, as the noble Baroness, Lady Morris, said, between the needs of the religion and the needs of the child to receive a broad and balanced curriculum sufficient that, when they are adults, they can make choices. Certainly, when I was a Minister there were a number of unregistered settings where the children were attending very full-time, and the organisations were pleading home education as their defence. There was no way, frankly, that there were enough hours in the dark day, or the energy, for that to plausibly be happening.

I also support the amendments in the name of my noble friend Lady Barran. Can the Minister say why it is necessary to have these powers and these changes in relation to academies in the Bill? In five years as the Academies Minister, at no time did I feel that I needed any more powers—either those in this group or those we will discuss later—to sort out problems. Of course, we now know why these powers are in the Bill, even if we do not know why they are necessary: because the unions want them. We know that because the Secretary of State for Education told us so yesterday at the TUC conference. I must say that I admire her honesty. The unions have made a number of excellent comments recently about the dangers of smartphones and social media, because they know that they are creating considerable problems in schools for children and for their members. The fact that they have been so current on this and so strongly outspoken is very impressive, and I commend them for that.

However, it is my perception that the unions are still very anti-academies, which I suggest is an out-of-date attitude. It is clear that a teacher in a good multi-academy trust has far greater career progression opportunities, far greater CPD and far more support than they could possibly have in a single school. I therefore invite the unions to consider their antipathy for academies a bit more in the context of career progression, and to support for their teachers.

My Lords, I support my noble friend Lady Barran’s Amendments 428 and 429A to eliminate any potential confusion between two distinct regulatory regimes. I will not repeat what others have said, but I believe that academy funding agreements should continue to be the primary regulatory instrument for these schools.

I also support Amendment 423 from the noble Baroness, Lady Blackstone, to strengthen the set of offences linked to operating illegal schools beyond the somewhat narrow conception of a “proprietor”. Illegal schools often operate in the context of a wider community where they are intentionally enabled by the support and action of others besides the proprietor. Alongside that, I thank my noble friend Lord Lucas for Amendment 432 and the noble Baroness, Lady Blackstone, for her remarks. Both recognise the importance and difficulties of collecting evidence in relation to unregistered schools.

I support Amendments 430 and 436, proposed by my noble friend Lady Morgan of Cotes, relating to independent school inspection. Again, I will endeavour not to repeat what has already been said, but I have an additional couple of points to make. Things can and do go wrong in all kinds of schools for all sorts of reasons, and always will. There needs to be an inspection model that is rigorous and thorough enough to report fairly and honestly, even when the findings are profoundly uncomfortable for the school and its leaders. Such a model has existed for Ofsted inspections—so for all state-funded schools and the half of independent schools, mostly the smaller and less well-known ones, that are inspected by Ofsted—and I hope that will continue to be the case under the new Ofsted model.

However. it is hard for the ISI to provide a corresponding level of rigour when it finds real problems in a school. I think the ISI inspection model is best characterised as a form of peer review. Peer review is a wonderful way of providing support and advice on ways to improve at the margin, but it is not so good as a method of landing really tough messages. It is simply too hard not to soften your messages and pull your punches a bit when you are talking to your peers. I understand that the ISI has only two full-time inspectors who must also oversee its whole inspection programme. There was once a DfE oversight mechanism for the ISI and a sample of its inspections used to be monitored, but that one control was dropped some years ago.

My Lords, I will attempt to sum up this very diverse group—

I apologise, that was my fault. I rise at the end of a very interesting group and look forward to the summing-up. One amendment has rather disappeared in the context of these important issues, but I strongly support it—Amendment 432B, tabled by the noble Baroness, Lady Barran. Until she tabled this amendment, I had not looked very carefully at Clause 39.

Clause 39 sets out a whole long list of things which will constitute a material change in the nature of an independent educational institution. I hope that the Minister will pay attention to this amendment because that would generate a lot of pointless work. It is also a classic example of how, in a large Bill, things slip through on the nod, on auto drive, and have certainly slipped past MHCLG. It says that there will be a material change, among other things, if there is a change of the buildings occupied by the institution and made available for student use, which the noble Baroness’s amendment would strike.

Going a little further down the page, you discover that “building” means any

“building … part of a building, or … permanent outdoor structure”,

that the circumstances where a building is “occupied” may be just

“part of a school day”,

and that it is “for student use” if it will be “routinely used by students”. I do not expect the Minister to give me a clear reply on this immediately, but it strikes me that this means that the proverbial bicycle shed, if it was changed into a building in which students kept things in lockers, would constitute a material change for that institution. That is bonkers.

I draw your Lordships’ attention to this, even though it is in a group which is dealing with much more important matters. I would be very grateful for a reply on this from the Minister, because it is easily corrected. A Government who are genuinely committed to reducing regulatory burdens and to making planning processes more easily arrived at has let something slip in a way with which we are all too familiar.