Why it’s not the end of the road for Lisa Nandy, Stella Creasy, Sarah Wollaston and friends
There will be understandable disappointment from lots of people – myself included that Lisa Nandy MP was unsuccessful in persuading Parliament to add “New Clause 20” to the Children and Families Bill at Report Stage in the Commons. The clause covered personal, social and health education in maintained schools, with the aim of making relationship education compulsory in schools. I’ll go into the reasons why it’s not over rather than why it’s important – which is for a separate blogpost.
Why it’s not over
Part of this comes down to some of the conventions that exist in Parliament, and between ministers and MPs. It involves reading between the lines of what ministers say to MPs and trying to work out where they are open to persuasion and where they are not. In the cases where they are open to persuasion as far as legislation is concerned, the issues are one of ‘legalistic detail’ rather than on points of principle.
How do we know this is a point of detail rather than an issue of principle?
We don’t know for certain – I’m only looking at the transcripts and cross-referencing with my own experience of working with ministers and a bill team on a past piece of legislation. (I worked in a policy team that had policy responsibility for a section of primary legislation going through Parliament – something I learnt lots from). Let’s look at what The Minister, Edward Timpson MP said in response to Lisa Nandy and other MPs.
“This group of amendments covers a wide range of issues relating to the care and protection of children. As I will be unable to address all the points made, I will endeavour to write to all hon. Members in response to their amendments and the questions they posed, particularly the hon. Member for Wigan (Lisa Nandy), who has been very convivial and constructive during the passage of this Bill, and my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), who has raised a number of important areas of debate, particularly in making some powerful points about returning home from care. I will look at those points extremely carefully and am happy to discuss them with him on another occasion.”
In the case of Ms Nandy, The Minister has committed to give her a written response to the points that she made both in her speech as well as regarding the broad thrust of the amendment that she tabled & ultimately pushed to a vote. This is important as what is not currently clear is the reasons why the Coalition whipped their MPs to vote against New Clause 20. (I’ll update this post with hyperlinks once Hansard has updated itself).
The best thing Ms Nandy can do as soon as she received the response from The Minister is to have the reply scanned and cascaded to everyone that has an interest. That way the rest of us can unpick the response. Feel sorry for the civil service policy officers that have to draft the response that will be unpicked by all of us. I’d be petrified if that were me having to draft up that letter. But then, ultimately it goes out in The Minister’s name so he has to approve the final content & make any changes he sees necessary. He’s the decision-maker.
No, really. How do we know the issue is a point of detail rather than of principle?
That’s why it’s ever so important Ms Nandy publishes that letter as and when she receives it. If it’s a point of principle, then it makes things a little uncomfortable for the Liberal Democrats, especially as on a quick scan, only my local MP Julian Huppert was the lone rebel along with Dr Sarah Wollason for the Tories. I’d have expected a few more rebels on both the Tory and Lib Dem benches – for example Margot James & Sarah Teather respectively.
If it is a point of principle that ministers have with New Clause 20, it should become clear as to why in the letter to Ms Nandy. If they accept the principle but not the detail, then what happens between now and the Bill’s introduction to the Lords becomes all the more important. The concern for ministers in this case will be ensuring that the objectives that MPs want to achieve are achieved in the amendments tabled. This is why MPs & peers table, debate and then withdraw amendments to pieces of legislation. They are called ‘probing amendments’ – amendments tabled to see where ministers really stand on an issue, and perhaps to get a commitment from them on the floor of the House which by convention of Parliament is as good as written in stone. This is because if a minister makes a commitment to Parliament knowing they don’t intend to keep it is a textbook breach of the ministerial code – the stuff ministers are expected to resign over.
What Ms Nandy’s amendment seeks to do is to amend primary legislation – the Education Act 1996, The Education Act 2002, and the Education and Inspections Act 2006. If ministers accept the principle of what Ms Nandy and colleagues want to achieve, it might be the case that they see a different mechanism to achieving those objectives. For example a simple enabling clause that says “The Minister may make regulations with regard to the teaching of sex and relationship education by means of a statutory instrument” – or words to that effect. If a minister then made a commitment that such regulations would be laid in Parliament by a given date, civil servants would then be directed to draft such regulations for the minister to introduce to Parliament by that date. At least in principle they should be – and it’s the minister’s responsibility if such regulations are not laid before Parliament by such a date.
What should Ms Nandy do next?
The first thing to do is to wait for the Minister’s response. If the Minister is opposed on principle, then it’s a party political issue and one that campaigners outside of Parliament can really sink their teeth into. If it’s a point of detail, then the challenge will be for Ms Nandy & her colleagues in the House of Lords to persuade ministers to table a Government amendment to the Children and Families Bill in the Lords – normally at Lords Committee Stage – to make the legislative changes that Ms Nandy and colleagues are seeking. In order to do this, Ms Nandy and one of her colleagues in the Lords will need to arrange a meeting with ministers to discuss the contents of Clause 20 that were rejected in the vote in the Commons.
What does this meeting look like?
Normally a meeting like this is chaired by the minister with the policy lead. In this case it is likely to be Lord Nash, as he is the minister responsible in the House of Lords for this Bill. For me, being a government peer in the Lords is not an easy job. The level of scrutiny you get in the Lords is far tougher than anything the Commons can throw at you – even though it gets next to no publicity. In the Commons you can go “Yah-boo-public-school” at your opponents and three-line-whip your MPs to vote with you and leave it at that. In the Lords it tends not to work that way – hence why governments tend to suffer more defeats in the Lords than the Commons. They are interested in things like how practical the legislation being tabled is, and whether there are serious constitutional conventions that are potentially being broken by it.
No, really, what does the meeting look like?
Accompanying the minister are a series of civil servants. These include someone from the minister’s private office and the senior civil servant responsible for managing the progress of the bill concerned. At various points there will be staff from the bill team, staff from the legal team and, at various points staff from the policy teams whose work areas are covered by the legislation. On the other side might be one or two MPs or peers who either have concerns about particular clauses, or who have tabled probing amendments that I’ve mentioned above – along with one or two advisers that they’ve brought along.
I remember being called up to one such meeting. I had about five minutes notice. “Yeah – can you come up? The minister wants you here for this meeting.” ***Eeeek!!!!***
Such is the dense nature of the material that ministers have to remember that they cannot possibly recall every single little detail. To give you some context, the clauses my team was responsible for covered about 2 pages of primary legislation. The minister’s speaking notes plus questions and answers? Over 100 pages. Now, when you look at major pieces of legislation passing through parliament…exactly. That’s a lot of ‘briefing’.
This is where the conversations happen – where the minister responsible can refer directly to the policy officials that do the detailed work. There will be a policy unit within the Department for Education that is tasked with responding in detail to the points made by Ms Nandy. The key conversation that needs to take place under the auspices of ministers is between Ms Nandy, one of her colleagues in The Lords and the civil service policy advisers. But this can only happen if it is points of detail that ministers have issues with. If ministers reject Ms Nandy’s arguments on points of principle, they have no incentive to offer Ms Nandy or anyone else arguing similar points the possibility of a meeting. In which case it goes down to votes in the Lords, similar to that over say equal marriage.
If ministers accept the point of detail, then the discussion will be over getting the language of the clauses correct legalistically and getting agreement from ministers that any amendments will be Government amendments – significantly increasing the likelihood that Parliament will accept them. (I can’t recall the last time a government amendment to a bill was rejected by Parliament – normally these are tabled in response to concerns from MPs and peers).
If all goes well for Ms Nandy and colleagues, we could see some government amendments being tabled in the Lords. But that all depends on whether ministers accept the principle of what Ms Nandy’s New Clause 20 was pushing for. We’ll have to wait for Edward Timpson’s letter to her to find out.