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Campaigners warn of schools bill’s ‘huge new powers’

So-called 'Henry VIII powers' will grant education secretary to amend or repeat other legislation with 'minimal scrutiny'

So-called 'Henry VIII powers' will grant education secretary to amend or repeat other legislation with 'minimal scrutiny'

The children’s wellbeing and schools bill will give ministers “huge new powers” to amend other laws with “minimal scrutiny”, campaigners have warned.

The bill includes so-called “Henry VIII powers”. A clause will grant the education secretary the power to “amend, repeal or revoke legislation passed or made before, or in the same session of parliament as this act”, via secondary legislation.

Secondary legislation is usually introduced using what’s called the “negative procedure”. This means it automatically becomes law unless either house of parliament stops it within a fixed period.

The powers are often used to make small technical changes to the wording of legislation, for example if there is a change to the name of a government department that needs to be reflected across all laws.

Privacy concerns

But the actions of the Conservative administration in 2016, which used secondary legislation to collect data on school pupils’ nationality and country of birth, has made privacy campaigners nervous.

Schools Week revealed at the time that the government had planned to use the data to help with immigration enforcement, pushing its “hostile environment” into schools.

Jen Persson
Jen Persson

The collection was stopped after a boycott by schools and in the face of legal challenges.

Jen Persson, director of Defend Digital Me, said the government “will have the power to define too many key details in this bill later”.

Law made in this way “relies on someone noticing and raising objection to parliament to get any democratic debate at all. It can only be stopped in hindsight.”

Among other reforms, the bill creates a duty on councils to maintain a database of children not in school, which will add to the mountain of data the state holds on children.

Persson pointed out that the government “still hands over pupil data monthly for Home Office immigration enforcement”.

The government was “building ever more matched datasets of parents’ income, benefits and pupil data. Parliament has never debated any of these powers.”

‘Huge new powers’

Jonathan Simons, a former Downing Street adviser, warned the method granted “huge new powers to any secretary of state – and their successors and even different parties – with minimal scrutiny.

“The default should be that government shouldn’t legislate to address issues that it hasn’t considered, rather than accreting sweeping new powers ‘just in case’.”

But the DfE said the Henry VIII powers were “justified” and “needed to make sure we’re able to deal with the legislative consequences that naturally flow from the main provisions”.

It is also needed to “ensure that other legislation continues to work properly following the bill’s passage, for instance by amending terms which are used elsewhere in legislation which have been replaced by provisions in the bill.”

The department described it as a “limited and narrow power, which may only be used to make amendments which are consequential on the bill provision”. It said regulations made under the power “will be subject to Parliamentary scrutiny”.

Provisions ‘very powerful’ and limited by ‘vague principle’

Lee Marsons, a senior researcher at the Public Law Project, urged the government to “set us on a path towards reducing the inclusion and use of Henry VIII powers”.

And Jo Maugham, director of the Good Law Project, which has challenged the use of such powers, said: “These are provisions which are very powerful – giving power to amend or repeal primary legislation.

They are also “limited or tethered only by the very vague principle that they must be ‘consequential on provision made by this act’”.

“It’s true there are worse examples of the use of Henry VIII powers on the statute books – but that’s hardly high praise.”

But Dr Ruth Fox, director of the Hansard Society, said “this type of clause is a common feature in government bills and has been routinely accepted by parliament over the years”.

If government “were to misuse this power, there would be consequences such as judicial review”.

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