1.The Education (Guidance about Costs of School Uniforms) Bill is a Private Member’s Bill sponsored by Baroness Lister of Burtersett. It received a second reading on 19 March 2021. The Department for Education subsequently provided a Delegated Powers Memorandum (“the Memorandum”).
2.The Bill imposes a duty on the Secretary of State for Education to issue statutory guidance to certain state-funded schools in England about the “costs aspects of school uniform policies”.
3.Although paragraph 13 of the Explanatory Notes accompanying the Bill says that the Bill “sets out who has to comply with the guidance”, strictly speaking no-one necessarily has to comply with the guidance. The legal duty on the appropriate authority of relevant schools is to “have regard to” the guidance when developing and implementing a school uniform policy for the school. Paragraph 12 of the Memorandum acknowledges this, saying: “by imposing a ‘have regard’ duty on appropriate authorities under clause 1(3), [the Bill] does not impose a particular course of action”.
4.Currently, decisions about school uniform policy are matters for schools. The Department for Education publishes non-statutory guidance, which includes a section on cost considerations. If this Bill is enacted, statutory guidance will replace the costs aspects of the current non-statutory guidance.
5.There has, to date, been no sight of any draft statutory guidance, although the Department has helpfully undertaken to share the latest draft before the Bill reaches its committee stage in the House of Lords on 16 April. The Bill contains no duty on the Government to consult before publishing the guidance. Nor is the guidance subject to any parliamentary procedure.
6.The Department offers four reasons in its Memorandum for the guidance not being subject to any parliamentary procedure:
(a)The guidance will be drafted with the engagement of representatives of schools, parents and key stakeholders including the Children’s Society and the Schoolwear Association. The guidance will also consider the points made by members and peers throughout the progression of the Bill through Parliament.
(b)The Department produces a large amount of detailed and technical statutory guidance to support schools and the wider education sector. Parliament has already determined that such guidance should not be subject to Parliamentary scrutiny and the approach taken here is consistent with that position.
(c)The guidance is not equivalent to education Codes of Practice that are typically broad and extremely detailed texts which outline all the central requirements for an area and have many aspects which are controversial and may require debate and amendment. The school uniform guidance is “a very limited document covering one aspect of school uniform which will sit alongside and complement the non-statutory guidance”.
(d)The duty in section 571 of the Education Act 1996 for the statutory guidance to be published in such manner as the Secretary of State sees fit will ensure it remains accessible to those who need to refer to it.
7.In our view the Department’s reasons are unconvincing.
(a)The fact that guidance will be produced in consultation with interested parties cannot be a reason for denying Parliament any scrutiny role whatsoever.
(b)If Parliamentary scrutiny is thought to be appropriate on this occasion (and it is very rare that an entire Bill is given over to the question of statutory guidance) it is irrelevant that parliamentary scrutiny has been denied on previous occasions in other education contexts. Each Bill should be considered on its own merits.
(c)The fact that guidance may or may not resemble a code of practice does not mean that parliamentary scrutiny of guidance should be ruled out. This Bill is concerned exclusively with a certain type of guidance. And yet Parliament is being asked to sanction the production of guidance that will never be required even to be laid before Parliament.
(d)The key issue is not about accessibility of the guidance but whether the importance of the guidance is such that it is appropriate to subject it to a parliamentary procedure of some description. If an entire Bill can be dedicated to the cost aspects of school uniforms, the resulting guidance should be subject to a parliamentary procedure.
8.Although a duty to have regard to statutory guidance does not imply a duty to follow it in any or all respects, we have in recent years observed that a person or body that is 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. In practice, the guidance is likely to be highly influential and play a significant role in the way that schools operate their policies on school uniforms. It is sufficiently important for the Government to have supported a Bill that is entirely dedicated to the matter.
9.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.
1 Department for Education, Delegated Powers Memorandum, 23 March 2021:
2 Paras 15–18.
3 Memorandum, para 17.
4 For example, 18th Report, Session 2015–16, HL Paper 83, para 13; 20th Report, Session 2015–16, HL Paper 90, paras 10-11; 21st Report, Session 2015–16, HL Paper 98, para 27; 22nd Report, Session 2015–16, HL Paper 102, para 19; 1st Report, Session 2016–17, HL Paper 13, para 38.