(13 years, 2 months ago)
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17:48 - Division on Amendment 7 - Ayes: 171 / Noes: 244 - Amendment 7 disagreed.
19:08 - Division on Amendment 17 - Ayes: 138 / Noes: 170 - Amendment 17 disagreed.
Baroness Anelay of St Johns
My Lords, I invite noble Lords to leave the Chamber quietly. The noble Lord, Lord Northbourne, is ready, willing and able to lead off on his Amendment 1.
Amendment 1
Lord Northbourne
“Foundation Stage
During a child’s first five years, both the father and the mother have a responsibility to do their best to provide or procure for their child the early education, including the personal, social and emotional development that child will need when they enter primary school at 5 years old.”
Lord Northbourne
My Lords, I apologise to the House as I did not hear the amendment being called. In Committee, I received strong support from all sides for my amendments on the importance of early years parenting. We all agreed that too many of the nation’s children today fail to get in their early years a foothold on the bottom rung of the education ladder. In her report published earlier this year, Dame Clare Tickell says:
“Parents and carers are the people who have the most important influence on children’s early development”.
She goes on to say that “clear and unambiguous evidence” shows that 44 per cent of children,
“are still not considered to have reached a good level of development by the end of the year in which they turn 5”.
The issue of how we improve school readiness is clearly important.
In his response to my amendments in Committee, the Minister suggested that my concerns were dealt with by Section 1 of the Childcare Act 2006. Having read it very closely, I find that the Childcare Act 2006 indeed sets out general duties on local authorities in relation to the well-being of children but it addresses the issue in terms of institutional childcare and nursery education. It makes no mention of the need to encourage, help and support parents who struggle to support their child with the start in life that it needs. The Act makes no mention of early years education in the home.
Looking at it in detail, Section 1 of the Act provides for free-of-charge provision of early childhood services. Section 2 defines the meaning of early childhood services and mentions parents only in that context. The rest of the Act makes it clear that the services referred to are institutional childcare services. They do not cover the role of parents and family members in the home. In my opinion—I say this with regret to the Minister—the Childcare Act 2006 is not a good basis for addressing the issue of the needs of parents, and indeed grandparents and family members, in their role as carers and educators of a young child.
The Government’s policy seems to be to deploy all available resources to the provision of out-of-family childcare and early education rather than supporting adequately parents in their efforts to educate in the home. As the noble Lord, Lord Peston, wisely said in his excellent intervention in Committee, the Government cannot take on the role of a parent.
Of course, institutional childcare has an important part to play but so do attachment, love, care, encouragement and education in the family. In the first two years of life, most children spend almost all their waking hours with a parent or surrogate parent. Even when they start to spend 15 hours a week in nursery school, they will probably spend the vast majority of their waking hours within their family. It is also important to remember that some families, often the most vulnerable, do not have any contact at all with institutional childcare services—often because they fear that if they did, social services might take their child away. In my view, there is the strongest possible case for working with and through parents, and through family structures, to help potentially disadvantaged children to develop emotionally and socially so that they are school-ready when they reach compulsory school age. The Childcare Act 2006 does not address these problems.
I turn now to Sarah Teather’s position paper Supporting Families in the Foundation Years, which unfortunately became available only after we dealt with these issues in Committee. Sarah Teather’s report is excellent and most welcome in many respects but it, too, fails to place sufficient emphasis on developing more and better in-family education in the early years. It does not give it anything like the same level of importance as it does to institutional care outside the family—I am sorry, my computer made a mistake and printed something in the wrong place.
The Government are making a mistake in this. I cannot see much hope in changing the policy by putting this matter to the vote during the Report stage, but I should be very grateful if the Minister would agree to meet me to discuss whether there is any possible way in which we could put more emphasis on in-family education as well as out-of-family education.
The three amendments which I have set down today move in the same direction as my earlier amendments but have much more modest objectives. Amendment 1 is about the very strong case for trying to reduce unwanted pregnancies, and to do that by making all parents, especially men, more aware of the obligations that they have to any child who they bring into the world. This is a matter not of outdated Victorian values but about what we believe is fair to the child. Surely every child should, as far as possible, have a chance to get their foot on the bottom rung of the education ladder before they go to primary school. Well informed and well motivated parents are the best and, incidentally, probably the cheapest way to achieve that objective. I believe that a reduction in unwanted pregnancies will not be achieved by making laws or by providing more institutional childcare. It can happen only as a result of a change of heart in our society, which would require a major campaign such as the one that so successfully addressed passive smoking. A clear statement such as this amendment, if accepted, would produce a solid basis for such a campaign.
I have set down the second and third amendments in my group because I believe that there is a strong case for making someone explicitly responsible for ensuring that the services to parents which the Bill establishes are actually being delivered by the wide range of different bodies that will be involved. It seems to me that the pattern of joint working that the Government propose for the early years services will lead to extravagance, duplication and inefficiency—especially when it comes to shared budgets. What business would run successfully without someone in charge? I have selected my amendments on the basis that so much of the delivery of this programme will fall on local authorities and they should have to answer for the effectiveness of delivery in their areas. At national level the Department for Education should have overall responsibility to Parliament in order to ensure that the outcomes of the programmes are being delivered because I believe that the early years programme is a key element in the success of the Government’s policy to improve educational outcomes and to reduce disadvantage.
I have set down these amendments because leadership is a subject that should not pass without some discussion in this debate. I beg to move.
Baroness Walmsley
My Lords, I very much commend the objectives of the amendments of the noble Lord, Lord Northbourne. I feel sure that my noble friend the Minister would also do so although I strongly suspect he would not accept that they should be put in the Bill. They express the Government’s intention in relation to helping and supporting parents. I am sure we all understand how important well informed, confident parents are to the upbringing of our children.
I agree with the noble Lord that we need a change of heart in this country. We need to accept that parenting can be learnt. I was in New Zealand during the summer and talked to the people who instituted its highly successful SKIP programme of parenting assistance, support and information. It is based on the premise that you can learn to be a better parent if you are well informed about how children develop, how their brains develop, what works and what does not, and what is good for the child and what is not. We can do that in two ways in this country. One is to start with PSHE in schools and work with young people to help them understand the seriousness of what they take on, as the noble Lord said, when they become parents. Later we can provide more assistance to parents.
I thank the noble Lord, Lord Northbourne, for his somewhat qualified warm words about my honourable friend Sarah Teather in another place. I would point out that she announced during the conference season this year that the Government will be providing more funding for parents who wish voluntarily to attend parenting classes. That is very much a step in the right direction.
Lord Eden of Winton
My Lords, I very much agree with what my noble friend Lady Walmsley has just said. I hesitate to disagree with the emphasis that the noble Lord, Lord Northbourne, brought to bear in moving his amendment only because I, like I am sure every noble Lord in this House, recognise the great contribution he has made over many years to the welfare of children and to the cause of good parenting. I certainly do not wish to dissociate myself from the objective he has set.
However, where I differ from him is in suggesting that bringing matters in the form of statute and putting them in the Bill is the right way to proceed. I agree with my noble friend Lady Walmsley that good parenting can be taught and that the practice is urgently in need of wider observation. I cannot accept that by putting these words into the Bill we will in some way be striking a blow at unwanted pregnancies. There are other ways of dealing with that. Several thoughts are brought to mind in this particular amendment. They include the damaging impact of the constant replication on television of various human relationship activities, which I do not think accord to the highest standards of individual conduct. If we were able—and as a former Minister for Posts and Telecommunications, I have to accept that we are not—to bring a greater degree of responsibility to bear on those who regulate our television programmes for the content of what is relayed into homes, where it is often watched by those with vulnerable minds, we would probably do a very great service to our children.
There is, in my view, a strong feeling that on the whole parents fail to understand the need to communicate with the child, even when the child is very young—although I recognise that that is an awful generalisation. I have made my next point in this place before. How often does one see parents pushing their children in pushchairs with the child facing away from the parent? If the child faced the other way, the parent would have direct contact with them, be able to talk to them, communicate with them and have eye contact with them. The benefit would be enormous not just to the parent, but, more importantly, to the child. These are not tricks of the trade but important underlying principles that need to be adopted by parents. They do not need to be written into the statute but they need to be understood by parents. We need to educate parents in this regard. That starts in the school where children receive all kinds of messages relevant to parenting.
Like all of us, it is the desire of the noble Lord, Lord Northbourne, to control the number of unwanted pregnancies, and therefore we might address the whole subject of sex education in schools in this group of amendments. That may well come up later. However, the content of that material, and the fact that it is projected to our children in schools from the age of five, is appalling. That matter needs to be tackled sensibly. The real key to good parenting and preparing a child for school is for the parent’s attention to be focused constantly on the child. Parents need to look after their children, not relegate them to sitting in front of the television, thereby avoiding their responsibility and the daily need to attend to their children’s requirements. We need to ensure that this happens by some means or another. I do not quite know how it can be done, but perhaps through talking about it a great deal, through educational provision, through our churches and through every other means of communication, we can ensure that parents really understand the responsibilities involved in having a child, and that that responsibility starts from the very earliest moment of the child’s life when they need to communicate directly with them and draw them into the heart of a loving family. That is the way to prepare children for education and school life.
Baroness Howe of Idlicote
My Lords, I have a great deal of sympathy with the amendments of my noble friend Lord Northbourne, which he seeks to insert at a rather appropriate place in the Bill just under the heading “Early Years Provision”. The amendments describe measures that the noble Lord thinks would be effective. I was not clear how the measures would stop unwanted children being born. Nevertheless, focusing rather more attention on things such as flexible working for both parents might allow a greater sharing of responsibilities. I am glad to say that that is the pattern today, whereby the country is using the talents of both sexes in producing well-balanced children for the future and making certain that we make the most of our intellectual and productive abilities when competing in an increasingly global world.
Lord Elton
My Lords, I am grateful to the noble Baroness for her reference to early assessment, but I fear that early assessment is actually too late. My criticism of these amendments, though not of their purpose, is that they come too late. We are suffering from having failed as yet fully to adapt to the change that has come over the mores of our nation and many others, most of it during my lifetime. We have gone from a time when unwanted children were such a threat to respectability, earning, and so on, when having a child was regarded as a danger and a risk to those who were not married, to a time when sexual activity is regarded by many, almost wholly, as a recreation with no consequences. It seems to me that that must be addressed long before they become parents. The answer therefore lies in later amendments which deal with how children are taught in school.
I sympathise with the wish of the noble Lord, Lord Northbourne, for a campaign to change our attitude to these matters. It is a biological as well as a political thing which will need a great deal of effort for a very long time by a lot of committed people. I hope that a number of them are in this Chamber.
Lord Storey
My Lords, I remember that when I was training to be a teacher one of my education lecturers, Mrs Mesurier, always used to say, “It is all down to good toilet training”. She was absolutely right. We should never underestimate the importance of parents to the life chances of children. That is why as a society we have done so much over the years to realise that the processes, schemes and opportunities for parents to be taught how to support and help their children at a very early stage are so important. I would also add that we must never underestimate the fact that many parents live in the most difficult of situations but bring up their children in a fantastic way.
There are all sorts of schemes in schools. We need only look at Sure Start, which we will be talking about later. It was a scheme to ensure that parents were closely involved in their children’s education, while at the same time they could be taught parenting skills and given support. I am all for action and feel that maybe we should take stock of the tremendous work that we have already done. I am not opposed to collecting more information; I just think that we should recognise the commitment and the work that we have done and evaluate more closely some of those schemes. I wholeheartedly agree with my noble friend that assessment of a child at an early stage is hugely important because we can then tailor educational needs and support to that child and family.
Lord Peston
My Lords, we are all indebted to the noble Lord, Lord Northbourne, for raising the subject today, as on many other days previously in my years here. He is indefatigable in his determination to remind us of the importance of young children and of the family in providing the relevant context.
I was going to say that we are all parents but looking at the grey hair around this House, I am obviously talking overwhelmingly to grandparents rather than parents. However, thinking back to when we were young parents, there would be no disagreement that our duty was overwhelmingly to our children. I am not opposed to parental education; quite the contrary—the more the better. I certainly did not have any but my wife and I had no doubt whatever that when we got married we would have children and that, of course, the children were our responsibility. We devoted our lives to them. They are now very grown up but occasionally the phone rings and one will ask, “Is mum there?”, meaning that he has a problem of the sort that he used to have when he was three years old.
There is nothing between us on what we are focusing on. The question is: what contribution we can make in the context of this Bill, which will become an Act of Parliament? I am not too happy at the negativism I have heard from one or two noble Lords on this.
I say to myself, “Why should we not put our aspirations in the Bill?”. Would it not be useful for your Lordships—people of experience and distinction—to send out the message that the noble Lord, Lord Northbourne, wishes us to send? I believe very strongly that the answer to that question is yes. I see nothing in our unwritten constitution that says aspirations must never be placed in an Act of Parliament. Indeed, I would go further: I feel those of us in this House would be failing in our duties if we did not insist that proper recognition was made of our aspirations. I am therefore in agreement with the noble Lord, Lord Northbourne, that this should be in the Bill.
I also think that, in terms of making policy, there is a genuine problem sometimes in not having all the relevant information we might need. This is not the last Bill that will ever be presented to your Lordships’ House on education, nor the last to be presented that will deal with the subject of children. It would be jolly good if we were able to speak with a full factual basis behind us. That is why I would particularly hope that the Minister would look at Amendment 3—also tabled by the noble Lord, Lord Northbourne—with the intention of giving us a database for future policy-making in due course.
I conclude as I began: it would be a very valuable thing for this House of older men and women to send out a message to the world that we really do think this is of central importance, and we aspire to do something about it.
Lord Ramsbotham
My Lords, like other noble Lords, I should like to pay tribute to my noble friend Lord Northbourne for his absolutely indefatigable championing of early years provision, which is the context of the amendment. I also agree with my noble friend Lady Howe about the importance of assessment, and echo the words of the noble Lord, Lord Eden, about communication. While I am commending, I also commend the Minister for the way that he has communicated with us all throughout this Bill, by writing to us, informing us and keeping us in the picture. That is very much appreciated.
I have to say to the Minister that, in saying what I am going to say, I end up with a question, which is a question born out of disappointment, from over a number of years, in failing to achieve what I know many noble Lords in this House want. In coming to this particular description, I was interested in the report and summary of evidence released in July by the All-Party Parliamentary Group for Education. I would like to quote certain passages from the all-party group’s reports, which I think are important, especially in connection with the amendment of the noble Lord, Lord Northbourne.
First, the all-party group states that all respondents to the inquiry,
“were of the opinion that early intervention is essential and that recommendations or statutory guidance should be provided to health authorities to prompt earlier intervention”.
I say that because I will conclude with health. Of all the different interventions, I have always felt that one of the most important is that of speech and language therapists, who enable children to communicate with their teachers when they start school. Without that, the pupils cannot engage. When we are talking about education, we are also discussing why people cannot engage. This point has been made over and over again, without success.
As has been said many times,
“It is vital that assessments and interventions are tailored to the specific needs of pupils”.
The point about such interventions is that they should identify specific needs, including difficulties and disabilities such as problems with hearing, sight and so on. This interests me because I have tried to get this introduced before, after I carried out an experiment in young offender institutions with children aged 15 and upwards. That experiment proved that, had those children had that intervention earlier, they might not have arrived at the institution—by and large, their journey until then had been one of failure, not least failure in education. I saw this represented and repeated by children on intensive supervision orders in Leeds, which proved exactly the same thing. The report by Mr John Bercow, as he then was, into the whole question of learning difficulties and how they were not being tackled, highlighted the same problem.
However, when I put up the suggestion that there should be speech and language therapists in every young offender institution to establish what was preventing people making progress, the whole issue ended up with money. The Ministry of Justice was unable to fund speech and language therapists because they came from the Department of Health. Similarly, when I put up exactly the same proposal in earlier education Bills, the same answer has come: it is the Department of Health's responsibility to provide these people.
The Earl of Listowel
My Lords, I will be very brief, in part because I have an amendment on a similar theme to this in the next grouping in the Welfare Reform Bill. I, too, thank my noble friend for tabling these amendments and for generating this tremendously important debate at the beginning of Report. It was deeply gratifying yesterday to hear the Minister of State, Sarah Teather, highlighting the fact that the most important thing in terms of outcomes for educating children is the home environment, which is more important than the jobs that parents do or any other factor. My noble friend has hit the nail on the head, and we must get this right.
It concerns me that we should encourage and enable parents to learn to read, write and count when they have not been able to do that at school. It is very important that we enable parents to get access to adult education so that they can make up for any deficits. It troubles me that creches at the adult education institutes are being cut. I understand the difficult circumstances, but if there is any money available to the Minister and his department in the form of targeted funding to improve outcomes for children, in recognition of the importance of the home environment that money should go to the creches in those adult education institutes.
The noble Lord, Lord Eden, raised some very important points. I am sure that it is a concern to see those children facing away from their parents in the idiotically designed modern prams. I understand his concern about compelling parents to attend parenting classes, but it is interesting to bear in mind what the noble Lord, Lord Warner, said when he was chairman of the Youth Justice Board at the time of the controversial introduction of parenting orders for parents who were not managing their children properly—the children were getting into the criminal justice system. His comment was that parenting classes were the cheapest intervention with these families and young men, that they were the most effective intervention and that, when parents went to the classes, they said, “Why didn’t we know about these before?”. They were really grateful for the help. This needs to be treated extremely carefully and perhaps used only rarely. I am not sure whether the classes continue, but perhaps there is a place for them.
The noble Baroness, Lady Howe, raised very important questions, as did the noble Lord, Lord Storey, about valuing the early years experience.
I will have to move on quickly. I thank the Minister in particular for his help in Committee on my concern about the turnover of staff in nurseries. I will not be present for the next grouping of amendments, so I want to thank him now. I realise that the best place for me to put my worries is in the new consultation on the inspection of nurseries. I now know the civil servant to speak to. I am very grateful to him for his help on this. I cannot speak on the next grouping, but I am very concerned about the high turnover of staff in nurseries and the fact that nursery staff are often the poorest paid and least well educated yet we are placing the most vulnerable children in their care. These children above all things need stability in their lives. They need stable people who stay around. In some settings, such as nurseries attached to schools, staff turnover is 5 per cent, but in Sure Start centres and in other centres, turnover can be 13 or 15 per cent. Better support for staff and proper training and development will help to reduce the turnover of staff. I am sorry to jump ahead, but I strongly support the amendment on Sure Start centres and on insisting that staff get the training and support they need.
I look forward to the Minister’s response.
Baroness Benjamin
My Lords, further to what the noble Lord, Lord Ramsbotham, said, I would like to add play therapy to his list. Qualified play specialists who can work with the child and the parent—especially those having difficulties in relationships and attachment—really work. I have seen the results of that type of therapy, which is quite remarkable. I would like the Minister to take that into consideration when he is looking at this amendment.
Baroness Hughes of Stretford
My Lords, I shall make a few brief comments on these amendments. I start by commending the noble Lord, Lord Northbourne, who never misses an opportunity to raise the issue of parenting. I am terribly grateful that he does so because, with so many weighty matters often before this House, it is sometimes difficult to get those issues heard.
The noble Lord and other noble Lords, including the noble Lord, Lord Storey, and the noble Earl, Lord Listowel, were right when they said that we cannot overstate the importance of having good parents and the disadvantage to children when parents for one reason or another do not understand what good parenting is. For me, that involves having good involved fathers as well as mothers, as the noble Lord’s amendments make clear. Too often in our discourse about this, the default position is mothers, and we forget about fathers. As Minister for Children for four years, that was something I was very concerned about.
The point made by the noble Lord, Lord Eden, about communication from birth is profoundly important. Communication is the basis of good parenting because the enrichment children get from that kind of elaborative language, play, song and stories literally helps the brain to grow and helps the conceptual abilities of children to develop as well as helping with bonding.
I do not share some noble Lords’ opinion that somehow there has been a failure of moral fibre among the population and that today’s parents perhaps no longer care as much as our parents did. There have been changes, but some of those changes are due to changing social circumstances. The lack of proximity of grandmothers, grandfathers and the extended family to new parents means that sometimes people become parents without the support of their family who have been through that before, so they do not benefit from the wealth of that experience. I do not think this is to do with unplanned pregnancy or feckless parents. It has been demonstrated that many people new to parenting nowadays need support to understand what good parenting is. In my experience, and as the research shows, parents want that support and want to be good parents. That is why, as noble Lords have said, the provision of the opportunity to learn what that means is so crucial. Putting on the statute book that this will be available, without dictating the terms of that in detail, is an important thing to do.
The noble Lord, Lord Northbourne, rightly looked at the Childcare Act and said that it does not make provision for parenting education and support, and he is right. However, other legislation already on the statute book and in statutory regulations make provision for that, and it was enshrined in the legislation and regulations that define the Sure Start children's centre, as the noble Lord, Lord Storey, pointed out. When the regulations for what children’s centres should provide were being drawn up, they included a core offer that all children’s centres had to provide, as well as some optional things that centres could provide depending on local need. The provision of parenting support and parenting education classes is in the core offer. All children’s centres, particularly those in disadvantaged areas, have to provide parenting support, and have been doing so. There has been enormous progress in the amount of provision available and, as the noble Lord, Lord Storey, has said, many schools, particularly primary schools, now provide that as part of their core offer.
The problem for me, which I would be grateful if the Minister could address, is that because children’s centres are closing and many are having to reduce the services they provide because of lack of funds, the progress that has been made in making parenting education and support available is now in jeopardy. The Minister may well refer to the point raised by the noble Baroness, Lady Walmsley, that the Government have very recently announced some new money to promote parenting support, but I question the need for that at the same time as we are seeing some of that provision disappear because children’s centres are closing and being reduced. There is some conflict about where the Government stand in relation to ensuring the provision is available. It has been available for some time now in children’s centres but, as I say, that is now in jeopardy.
I very much support the amendments. The noble Lord, Lord Northbourne, said that he would not press them for a vote, but I think it is important for the Minister to make clear the Government’s position on this, particularly in relation to children’s centres. We will come to that issue in more detail in Amendment 5, but it is relevant here because this is predominantly where parenting support and education is currently available.
The Earl of Listowel
Before the noble Baroness sits down, can she say whether she thinks it important that there is a good, continuous institutional base for parenting training and development? I may have misremembered—
Baroness Garden of Frognal
If the noble Earl will forgive me, on Report people may speak only once to each amendment.
The Earl of Listowel
I thought it was the case that one could ask a brief question before someone sits down. I do apologise if that is wrong.
Baroness Hughes of Stretford
If noble Lords will accept the question put to me by the noble Earl, Lord Listowel, I will answer it. I think it is very important that there is an institutional base because one needs to develop a great deal of expertise around delivering parenting support.
There is a danger that anybody who has been a parent thinks they can give effective parenting support and education, and that is not the case. Children’s centres are required to provide only those programmes that have been extensively researched and validated to show that they have a positive impact. The Webster-Stratton approach and others have been so researched and the documentation on their effectiveness is in the public domain. It is not clear who will deliver the programmes the Government have put this extra money into, but it is very important that there is the training and delivery of really clear programmes that make a difference. Otherwise, if people think they can just get a group of parents together and advise them because they have been a parent and they know how it is done, I am afraid that can do more harm than good.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, it has been an extremely good debate to kick off Report stage. Like others, I thank the noble Lord, Lord Northbourne, for raising this issue. No one has done more than him to keep the importance of parenting before this House. No one could possibly disagree with him about the vital role that parents play and about the importance of helping children get off to the best possible start in life. He is always keen for the Government to do more, but I hope he will accept that there is a lot going on in the early years already.
I imagine the noble Lord saw the announcement made yesterday by my honourable friend Sarah Teather about the parenting trials that will be run in Middlesbrough, High Peak and Camden. My noble friend Lady Walmsley referred to the lead that my honourable friend Sarah Teather is taking in this respect. Those trials will give parents access to parenting classes during the first five years of their child’s life so they can have help with parenting until the child starts school. I would be very happy to arrange for the noble Lord, Lord Northbourne, and any other noble Lords who are interested, to be briefed more fully on those trials.
As the noble Baroness, Lady Hughes of Stretford, said, the Government are protecting support and advice for parents in some other ways as well. We funded a range of voluntary and community sector organisations to operate online and telephone support services which, in the past three years, have had 10 million contacts from parents. They give help to parents in the important job of bringing up their children, and there is more news coming on those later this week.
The noble Lord, Lord Northbourne, has tabled three separate amendments relating to parenting. The first would be a duty on parents. While I agree that parents—both fathers and mothers, as has been said, not just mothers—have a responsibility to provide for their child, including promoting their personal, social and emotional development, we do not believe that imposing declaratory obligations on parents is the right way forward, as my noble friend Lord Eden of Winton, also argued. We know that most parents do a good job, as my noble friend Lord Storey reminded us, many in difficult circumstances, and we therefore do not think that they need a new legal duty to do what they do naturally. The duty would also be unlikely to motivate the small number of parents who do not do a good job. We would argue that what is needed is practical help and support of the kind that a number of noble Lords have already raised—for example, about communication, a point that the noble Baroness, Lady Hughes of Stretford, underlined from her distinguished experience as Children’s Minister.
The kind of support we provide is offered through Sure Start children’s centres. I know that the noble Baroness is concerned about those and their future, as we discussed yesterday and will discuss later today. The Government are putting in enough money, through the early intervention grant, to sustain a national network of Sure Start children’s centres and to make sure that they focus on those with the greatest disadvantage. I have mentioned the parenting trials and the helpline services. There are programmes for families with multiple problems or the kind of flexible working that was mentioned by the noble Baroness, Lady Howe of Idlicote. We are also adding 4,200 more health visitors. Those are the kind of health visitors who will be able to carry out the sort of assessment that was mentioned by the noble Lord, Lord Ramsbotham. I shall come back on his points in a moment.
We have protected the 15 hours a week free nursery education for three and four year-olds, and, subject to parliamentary approval, we will extend that to disadvantaged two year-olds. Local authorities are under statutory duties to ensure that there are sufficient children’s centres to meet local need, so far as is reasonably practical, and to provide information to parents about the services available locally to help them. That brings us on to the important points that were raised about information, particularly by the noble Baroness, Lady Howe. The point raised by the noble Lord, Lord Ramsbotham, was echoed by my noble friend Lady Benjamin. He is right to highlight the importance of speech and language to children’s school readiness. The Government, on the recommendations of Dame Clare Tickell, are introducing a review of children’s progress at age two. We are looking at bringing the health and education aspects together in the way that the noble Lord said. I know that my honourable friend Sarah Teather is looking at that, but I will also raise the point with my noble friend Lord Howe.
With regard to information generally, there is quite a lot of information out there. The early years foundation stage profile gathers information on a child’s preparedness for school. Under existing legislation, local authorities are required to collect information about children’s progress in the early years foundation stage at age five, and the Secretary of State publishes these data annually at both the local authority and national level. But what I will do, which might help noble Lords, is to write to the noble Baroness, Lady Howe, and set out in one place the various ways in which information is provided so that we can pull it all together and see what is out there.
Like all other noble Lords who have spoken, I am extremely grateful to the noble Lord, Lord Northbourne, for raising the profile of parenting. I would be keen to take him up on his generous offer of discussing these important issues further after Report stage and to arrange for him to meet my honourable friend Sarah Teather who has responsibility. I will speak to the noble Lord with a great deal of pleasure.
As regards these amendments, we do not think that the statutory declaration is a necessary or practical way forward. I know that I will have disappointed the noble Lord but in light of the existing duties around the provision of information and services, I would ask him to withdraw his amendment.
Lord Northbourne
My Lords, I always get a bit nervous. It makes me feel a bit of a bore when everyone is so kind as to say that I am always raising these issues. But they are none the less important. Perhaps I may take what the Minister said first—I think it was referred to by the noble Lords, Lord Eden and Lord Peston, one against and one in favour—as regards why it would be a good idea to put something in the Bill. It is not at all an original idea. The Children (Scotland) Act 1995 already has a very good definition of the responsibilities of parenthood.
Earlier this autumn, I was at a wedding in France. I was interested that the mayor read out certain extracts from the Code Civil to the married couple. Loosely interpreted, one extract said, “If you have children, you as parents will be responsible for feeding and caring for your children”. It is not unthinkable or way out to suggest that some sort of hint of obligation could be in statute. I suggest it more as a matter of principle. As someone said, our moral values have hugely changed, not always for the worse, since the introduction of contraception. We really have not thought the issue through properly to ensure that everyone understands what we as a society believe to be the responsibilities of bringing a child into the world. Somewhere, somehow, some Government have to have the courage to get people together and to say, “Look, this seems to be a reasonable compromise solution”. It should be thought of in terms of the rights of the child.
I do not think that the noble Lord spoke to my two other amendments but I shall read what he said. There is an element of chaos in the organisation that the Government are proposing. The speeches of a number of noble Lords today have shown that one person is doing one thing and another is doing something else, but one did not know that the other was going to do it, and this, that and the other. Somehow, it needs pulling together as an organisation if we are to get results, and get them at the right price. I am sure that an enormous amount of money is now being wasted in terms of duplication.
I am very grateful to so many noble Lords for participating in the debate on this important subject. I had something to say about what the noble Baroness, Lady Walmsley, said but I have forgotten what it was. I hope that we shall move forward on these issues from one Bill to the next. On that basis, I beg leave to withdraw the amendment.
“( ) Regulations under subsections (1) of (2) may not, following their first use, specify a reduction in the total number of hours of early years provision available to each child that a local authority must secure free of charge.”
Baroness Hughes of Stretford
My Lords, Amendment 4 relates to the early education provision for three and four year-olds and now for two year-olds. Amendment 5 relates to Sure Start children’s centres, on which we have already briefly touched. As it stands, the clause makes it possible to include in statutory regulation the provision of free early years provision for children of two years of age from disadvantaged backgrounds. I want to start by saying how genuinely I welcome the extension of this provision for disadvantaged two year-olds. This was started by the previous Labour Government initially giving places to 12,000 two year-olds with a long-term goal of free places for all two year-olds, and building on the offer for three and four year-olds. I very much welcome the Government’s decision to continue that process.
As it stands, the Bill gives the Secretary of State new powers to decide, through regulation, how much early years provision should take place and when it must be made available. This amendment aims to ensure that any changes in the scope of that regulation-making power can be used only to increase provision above that which already exists, and not to reduce it. The amendment would mean that moves by any future Government to reduce early years entitlements would have to come before Parliament as a whole and could not simply be done through regulation alone. I tabled a similar but not identical amendment in Committee, and I was grateful for the advice of the Minister that its wording could have reduced the flexibility available for parents. That was not my intention.
I come back with this amendment not because I doubt the sincerity of the Minister or even the current Government in their commitment to continue and, if possible, build on this early years provision. Noble Lords have identified it as important; having children in early years education and childcare allows for opportunities on, for example, early intervention, assessment and parenting. I do not doubt the Government’s sincerity, but we do not know what a future Government might do. More importantly, there are two reasons why this provision should be included. First, families need and deserve the certainty that this provision will continue, and that if it changes it will only increase, without Parliament having to consider it again. That is important for families. Secondly, and relatedly, I would like to enshrine this provision, as far as possible, with the same or equivalent status as that of schooling from the age of five, because that would underline and would state powerfully the importance of early years provision. In other words, it is a provision that parents can expect will continue—and that Governments will continue to provide—for children aged two, three and four. It is for that reason that I hope, with the changes I have made to the amendment, that the Minister might accept it on this occasion.
I turn now to Amendment 5. We rehearsed the arguments about the importance of Sure Start briefly yesterday in Questions, and we debated it in Committee. I make no apology for returning to this but I realise, from the Minister’s earlier statement, that he is unlikely to accept this amendment. I nevertheless say that what the previous Government managed to do—and I think this Government are in support in principle—was establish a new framework of services for parents and the under-fives, through a national network of children’s centres, one in every locality. Not every centre has the same services; in disadvantaged areas there are more extensive services than in others. They are, however, a focus for the integration of services such as children’s social services, early education and health services. We aspire to early identification of children and families in difficulty in a universal, non-stigmatising service that will enable the centre to identify and reach out to families who need support, as well as offering other opportunities—such as play activities—that all families can take advantage of. Having established this national network, it would be a retrograde step to let it crumble. My concern is that it is crumbling.
I have brought forward this amendment to reinstate the qualification requirements which the Government have removed. As with teaching, we know that the quality of early years provision in particular is absolutely fundamental, and that the quality of the provision is fundamental to having a positive impact on children. It would also reinstate ring-fencing of the funding for Sure Start centres.
I quickly wrote down what the Minister has just stated: that he feels that the Government, through the early intervention grant, have provided sufficient money to sustain a national network of children’s centres. The early years intervention grant brings together funding not only for Sure Start children’s centres, but for 20-odd other services, including, for instance, the strategy to tackle teenage pregnancy. A whole range of things has been lumped into this grant. As a whole, the early intervention grant is 20 per cent less in real terms than those funding streams were when added together, so it will be a huge challenge for local authorities to sustain their children’s centres when the money now has to be spread across 21 different services and has been reduced by 22 per cent in real terms. I really must say to the Minister that while the money might sustain something of a network of children’s centres, it probably will not sustain the level of national network that we achieved with a children’s centre in every locality—one, as I have said, that is accessible, universal and non-stigmatising.
To make this a residual service only for the most disadvantaged areas misses the point of children’s centres and risks the fact that very disadvantaged families will not get to them. One of the reasons they were coming to children’s centres was that they were for everybody, not just for disadvantaged people. If it was just another arm of the statutory services, they kept away.
This is an important amendment, but I do not think for a moment that the Minister is going to accede to it. We have information now that we referred to yesterday: as a result of the reductions in funding, many centres are actually closing down and many more closures are in the pipeline. Further, centres that are staying open are reducing their service offer down to the absolute minimum. Looking to the future, given that this national network of centres had an enormous potential to make a huge difference to the next generation of young people, then of all the decisions the Government could have made in relation to funding priorities—I accept that they had to make them—sustaining this service at the level at which it was being provided ought to have been a priority. I hope—although I do not have much hope—that the Minister will also look sympathetically at Amendment 5. I beg to move.
Baroness Walmsley
My Lords, I think I can give the noble Baroness, Lady Hughes, some comfort on Amendment 4 because I am very familiar with a document called the coalition agreement. Although we cannot bind any future Government, this Government are bound by that agreement. I do not think it would allow any reduction at all in the amount of early years education provision given to children in this country during the five years of this Government. Turning to Amendment 5, I agree with the noble Baroness on the point about qualifications. The most reputable pieces of academic research into the effects of early years provision make it clear that the better the qualifications of the staff leading a centre, the higher the quality of provision and the more good that does for children. Indeed, it has also been shown that poor provision can do more harm than good. The noble Baroness is absolutely right that we should focus on improved qualifications for the early years workforce.
On the number of Sure Start children’s centres, it is a pity that the noble Baroness’s diary was unable to allow her to attend the meeting and seminar of the All-Party Parliamentary Group for Sure Start last week, at which we heard from a number of local authorities. It has to be admitted that they were all struggling to continue to make the provision they wanted to make for children and their parents. It was startling to see how differently they approached the issue. One of them pointed out that while in some cases they had closed a physical centre, they had not ceased to provide services to children and their families because they were being offered out of another centre, or from a virtual centre or something like that. We have to allow local authorities to work with the budgets they are given and make provision in the way they see best. But, of course, we also have to allow them to impose their own priorities on the provision they make. I am delighted that so many local authorities consider Sure Start children’s centres to be so important that they have somehow managed not to close any or reduce the services they provide.
Lord Northbourne
My Lords, I would at this point offer a brief thought on this amendment, which I do not entirely support. All the payments we are making are about inputs and what really matters is outcomes. How and whether it is possible to measure the output from a children’s centre, I am not entirely clear. It would not be easy and, so far as I have had any experience of children’s centres, there is a wide variation; not only in the quality of the service that they offer, but also in the clientele they offer it to. In one that I visited, it was quite manifest that the parents were quite wealthy, and when I asked them what they did about hard-to-reach families, they sucked their teeth and said, “Well, they are hard to reach”. So it is outputs that we should be paying for, not inputs.
Lord Hill of Oareford
My Lords, it is clear from the discussions that we had earlier in Committee and the exchange today that everyone on all sides of this House agrees on the importance of investing in children’s early years. We know that high quality early education is crucial to achieving greater social mobility and to improving the life chances of all children. That is why the Government seek to extend the free entitlement to early education to disadvantaged two year-olds. Clause 1 allows us to build on the provision that the noble Baroness, Lady Hughes of Stretford, established through the Childcare Act 2006. I was grateful for her generous welcome for the measure. I know how much it means to her. I also know what a respected Children’s Minister she was, so I think there is agreement across the House on the importance of this measure.
Since we last debated this clause in Committee, the Government have published their Families in the Foundation Years policy statement. That sets out the Government’s vision for the foundation years as a whole and reaffirms our commitment further to improve early years services. It includes a number of proposals specifically on the early education free entitlement. For example, we intend to launch shortly a public consultation on how the flexibility and quality of provision of the entitlement could be improved. This consultation will also cover the criteria for which two year-olds should be eligible for the free entitlement.
Despite the challenging economic circumstances we face, we have protected funding for the three and four year-old entitlement and provided the additional funding that the noble Baroness, Lady Hughes of Stretford, referred to for disadvantaged two year-olds.
The noble Baroness, Lady Hughes, set out her concerns underlying Amendment 4, and I understand what she seeks to achieve. The current entitlement for three and four year-olds is set at 570 hours a year, over no fewer than 38 weeks a year. That is, 15 hours a week. We now seek to extend this to all disadvantaged two year-olds. While I understand the case that the noble Baroness made about protecting the level of this entitlement in primary legislation, the question that I would ask is the same that my noble friend Lady Walmsley asked: protection from whom?
This Government, as my noble friend says—I am sure she is accurate, since she knows the coalition agreement extremely well—have given repeated assurances over the early education entitlement. I am also sure the noble Baroness, Lady Hughes, recognises that, and her party clearly believe that one would want to move only in one direction. So do the Liberal Democrats.
The first amendment in this group seeks to tie the hands of future Governments regarding the entitlement and I would contend that we do not think it is the place for primary legislation to prescribe that level of the entitlement. Those details should lie in regulations. That was the approach taken by the previous Government when they initiated free entitlement for three and four year-olds in the Childcare Act 2006. When the noble Baroness was in my department, they argued in their memorandum to the Delegated Powers and Regulatory Reform Committee in 2006 that:
“It is appropriate that this provision is in secondary legislation to give flexibility to react to changing circumstances”.
We believe that was the right approach.
Subsequent Governments will have to make their own judgments on the appropriate level of the free entitlement. We are responding to lessons that have been learned from experience since 2006, and in particular in extending it to disadvantaged two year-olds, and it is possible that future experience may throw up other lessons. So, as the noble Baroness conceded that she would expect, we believe the first amendment is unnecessary.
The noble Baroness’s second amendment concerns the sufficiency of children centres to meet local need and the qualifications of the staff working at them. There is no difference between us about the importance that we attribute to children centres. They are vital to improving outcomes for children and their families—a point made also by the noble Lord, Lord Northbourne—and it is the outcomes rather than the inputs, to use the jargon, which are important.
There are, year on year, overall improvements in early years foundation stage outcomes and that is vital. We know that 94 per cent of children who achieved a good level of development at age five in 2007 went on to achieve the expected levels for reading at key stage 1 in 2009. So there is a clear link.
The existing legislation requires local authorities to ensure there are sufficient children centres to meet local need so far as is reasonably practicable. The effect of the noble Baroness’s amendment would be to take out having regard to what is “reasonably practicable”. We should stick with the current formulation. As my noble friend Lady Walmsley argued, local authorities need the flexibility to be able to determine local priorities in the context of their many responsibilities and, yes, the resources that they have available to them. Again, that was the position that the previous Government took in 2009: local authorities must be able to consider their local context, their resources and their overall priorities as they strive to ensure access to services that improve young children’s outcomes.
The noble Baroness, Lady Hughes of Stretford, is right to say that local authorities are facing difficult financial circumstances. I know of her concern about the funding going into Sure Start children centres. She or one of her colleagues in another place has carried out their own work to ascertain the extent of what is going on. The department is monitoring the situation and is working with local authorities to get an accurate fix on what is happening. She will know probably better than me that it is a fluid situation, and we want information from which we can see how things are developing.
As my noble friend Lady Walmsley has just mentioned, and mentioned yesterday, many authorities are keeping all their children centres open. Local authorities should have the flexibility to deliver services in the ways they think best meet local needs within the resources that we have.
I agree with the noble Baroness, Lady Hughes of Stretford, about the importance of qualifications. Again she will know that for some roles qualification requirements are in place. The statutory framework for the early years foundation stage specifies that all supervisors and managers of registered childcare settings for children under five must hold a full and relevant level 3 qualification and half of all other staff must hold a full and relevant level 2 qualification. Those health services delivered through children centres can be provided only by suitably qualified and experienced professionals because of other statutory requirements already in place. As Dame Clare Tickell said in her recent review, there has been an improvement in the skills of the early education and childcare workforce in recent years. We have set up recently a review of qualifications for the early education and childcare sector, led by Professor Cathy Nutbrown, to consider how best to strengthen qualifications and career pathways.
Baroness Hughes of Stretford
My Lords, I thank the Minister for his reply and have a few brief comments in response to his contribution and also that of the noble Baroness, Lady Walmsley.
On Amendment 4, I hope that the noble Baroness will not think me discourteous if I say that it will not sufficiently comfort me or many parents—as was my intention with the amendment—to say that it is in the coalition agreement and so will be all right. We have measures now in Parliament that were not in the coalition agreement and there are measures in the coalition agreement that have not—as yet, anyway—been put forward to Parliament. While I accept her personal commitment, and that of the Minister and indeed maybe of the current Government, what happens in the future is open to question. As I said, my intention was both to give parents some certainty and also try to give this provision to the under-fives an equivalent status to that of schooling. I am sorry that I have not been able to convince the Minister that those were sufficiently worthy objectives to accept my amendment.
On Amendment 5 and the children’s centres, I am grateful to the noble Baroness for her support on training. The comments about the improvement in the skill levels of people in early years are important but, certainly in part if not in very large measure, those improvements have been made. We have set the bar higher. A big issue about the quality of early years provision is the level of qualification and training that people get. We know that this is a largely unskilled, underpaid and female workforce. Over time, we need to bring up the levels of qualification and expertise. As I said, the improvements have been the result of setting the bar higher. Lowering the bar is a retrograde step, notwithstanding the comments that the Minister made about the requirements of people in a supervisory capacity.
On ring-fencing and whether this should have been a greater priority for the Government, we will have to beg to differ. I hope that the department will keep a close eye on what is happening in Sure Start children’s centres, both in terms of the numbers and what is being offered inside them. As I said, to risk this national network crumbling now would be another retrograde step which I am sure that the Minister would personally not support. However, in light of those comments, there is no point in my pressing this to divide the House. With that, I beg leave to withdraw Amendment 4.
“( ) In subsection (1)(b), at the end insert “and has been trained— (i) in the need to maintain the pupil’s dignity and right to privacy in carrying out the search, and(ii) on additional requirements for searching pupils with special educational needs and disabilities;””
Baroness Jones of Whitchurch
My Lords, our amendments cover training for schools in the awareness of issues of pupil dignity and discipline when pupils are searched without consent in schools and, similarly, in FE colleges. They also cover the requirement for a witness to be present and, finally, the need for clarity on the school rules regarding which prohibited items can be confiscated in schools.
First, on Amendments 6 and 11, we had an excellent debate on training in Grand Committee and, with respect to the Minister, we very much felt that the weight of the arguments was on our side. This is why we have tabled similar amendments on Report. I also thank the Minister for his letter of 12 October, enclosing draft advice on searches. It picked up on some of our points raised in Committee but we do not feel that it goes far enough. For example, those guidance notes explicitly say that there should be no need for staff to be trained. It was said earlier that we very much welcome the plethora of letters that we have had from the Minister over the past few days. I echo our thanks but I believe this is going to be a pattern of the coming debates on Report, because the Government are keen to sideline some of the issues that we are raising into lengthy advice and guidance notes, whereas we feel that a much clearer and simpler direction on many of these issues needs to be in the Bill and would be much more helpful to heads and teachers alike.
Going back to the detail, our first amendments seek to ensure that any staff who undertake searches are appropriately trained to search with special educational needs and disabilities in mind and to search all pupils in a way that maintains their dignity and right to privacy, and so to foster a school environment of mutual respect. The Bill removes important checks and balances that have been in place to protect both pupils and teachers. As I understood the Minister's argument in Grand Committee, he accepted that training of staff was necessary but felt that heads should be free to decide whether and when staff should be trained. We take a different view. Of course, heads should have some flexibility in deciding the right courses for their staff but we also believe that the issue of pupil searches is so sensitive, and the opportunities for things to go wrong so stark, that there needs to be a requirement in the Bill to ensure that proper training happens.
As we reported in Grand Committee, our views are supported by a number of children's charities, which felt that staff doing searches should be trained in and given guidance on the effects of searches on young people, including on their self-esteem and confidence. In addition, organisations specifically concerned with special educational needs have expressed particular concern. For example, Ambitious about Autism highlighted the need for proper training to carry out safe searches on children with autism so that the children’s potential issues around physical contact, for example, were understood.
From the perspective of a child, searches can be very invasive and frightening experiences, causing children embarrassment, anxiety and humiliation. As adults, we sometimes forget what it feels like to be on the receiving end of a physical intervention from someone in power. These concerns can have even more pronounced implications for children with a history of physical or sexual abuse, children with a disability or special educational needs or children from different cultural backgrounds. For example, I was very struck by the intervention in Committee from the noble Baroness, Lady Benjamin, when she raised the negative impact of searches on the disproportionate number of black children who are currently being disciplined. In addition, our amendments would give a welcome protection to staff who might otherwise face allegations of improper behaviour.
For all these reasons, we believe it is right to insist that appropriate training takes place for all staff who may be required to carry out searches and that this requirement be spelt out in the Bill. Although I have referred specifically to schools, we believe that the same principles should apply to further education colleges. I hope that the Minister will acknowledge the similarities that cross over those two areas so that we do not have to have two separate debates on this.
We then have a number of amendments on the issue of a witness being present at searches. They are Amendments 7, 8A, 9, 12, 13A and 14. They follow on from our discussion in Grand Committee in which the dangers of unwitnessed searches were starkly spelled out and, with due respect again to the Minister, we did not feel were adequately counteracted. We therefore felt it was necessary to return to these issues today. Again, I acknowledge that these issues have been picked up in part in the draft the Minister has issued but we feel that the issues he has raised in the letter do not adequately address our concerns. Our amendment, which leaves out lines 32 to 33, removes the part of the Bill that says that if there is an emergency there does not need to be a witness present.
As we have previously made clear we support moves that would continue to support schools to improve behaviour and discipline, building on the measures brought in by the previous Government. However, despite debates in both Houses, it is still not clear why the removal of the requirement for there to be a witness to searches would be a necessary addition to existing powers to search or to use reasonable force to control or restrain a pupil or if necessary to stop a pupil committing a criminal offence. The debate in Grand Committee drew strong support from across different parties and the Cross Benches. For example, the noble Baronesses, Lady Walmsley and Lady Jolly, tabled an amendment to remove part of the clause that is included in the aims we are pursuing again today. I am aware that the noble Baroness, Lady Walmsley, has tabled Amendment 13, which insists on same-sex searches. This is a position again that we debated in Grand Committee and we supported then and still have some sympathy for today. However, we acknowledge the difficulties that can arise in primary schools where very often there are not teachers of an appropriate sex available. We believe the presence of a witness provides in all circumstances the overriding protection both for staff and for pupils being searched. The witness is the most necessary requirement.
A common view has arisen from our debates that children’s rights must be paramount. A number of children’s charities have raised concerns about the safeguarding issues should this clause go through unchanged. For example, Barnardo’s has argued that the extension of the powers of school staff to search pupils without their consent is troubling and the existing safeguards to protect both the child and the teacher must remain. It also argued that searches must be witnessed, carried out by a person of the same sex as the pupil, and recorded.
In the earlier debate I was particularly struck by the comments of the noble Lord, Lord Storey, who was able to give a practical insight into how the Bill would impact in the classroom. He said:
“If there is a crisis, the best way to deal with it is not to provoke the situation further but to calm everything down. My concern is that if a teacher carries out this act by themselves and no one else is present, it could put them at risk”.—[Official Report, 30/6/11; col. GC 261.]
As I also mentioned in Grand Committee, this clause gives school staff powers that go beyond the powers of the police in respect of stop and search. Can the Minister clarify whether this is in fact the consequence of the changes and has he consulted his colleagues in the Home Office to learn the lessons of the overuse of stop and search?
Throughout the debates on the Bill so far no one has been able to come up with a convincing range of examples of the circumstances in which these new powers need to be used. Teachers already have powers to intervene in the classroom in an emergency and, in other examples, the situation of a lone teacher carrying out a search is likely to aggravate not dissipate a situation as well as putting the teacher at risk. There does not seem to be a clamour from heads or from classroom staff to have these new powers. In the absence of any compelling reasons, despite thorough debate on these clauses in both Houses as to why searching without a witness would ever be necessary or sensible, and recognising the risk to pupils and teachers that the removal of the witness requirement may bring, my amendment would simply make it a requirement for people to undertake searches with a witness present.
Baroness Walmsley
My Lords, I wish to speak to my Amendment 8 to Clause 2 and Amendment 13 to Clause 3. Amendment 8 addresses same-gender searches and teachers or other staff searching alone in schools. Amendment 13 refers to colleges in Clause 3.
In Committee, the Minister pointed out that in primary schools with staff of all, or nearly all, one gender—usually women—it would usually be very difficult to find a member of staff to search boys. Of course, the opposite may also be true in some single-sex boys’ schools. We have taken that objection on board and come forward with a compromise which we hope will find favour with the Minister. Amendment 8 would allow opposite-sex searching of children under 12 as long as there is a witness of either gender present. I agree with the noble Baroness, Lady Jones, that that is vital. However, we hold to our view that searching a child without a witness opens up the teacher and the child to danger in a quite unnecessary way. We accept the extension of the items for which teachers can search, and that these will be specified in published school rules. However, we feel that children’s privacy and dignity should be protected under their rights under the UN Convention on the Rights of the Child, and that teachers should be protected from false allegations and possible physical harm if a child does indeed have a weapon in his pocket. If such a thing is suspected, a teacher would be very foolish indeed to search alone.
Like the Government, we trust professionals: 99.9 per cent of teachers will use these powers sensibly and carefully in their own interests and that of their pupils. However, we do not believe that legislation should allow something to be done lawfully which is quite wrong and dangerous. I fear that a tiny minority may not behave with the wisdom we hope for.
I wish to say something about the draft guidance that has been sent to us. Guidance is vital—all Governments think that is the case. Indeed, on many occasions when I pressed the previous Government to include measures on the face of a Bill, they said that it was absolutely fine to have them in guidance, and this Government are no different. Therefore, it is important that we work on the guidance. As the noble Baroness, Lady Jones, has just said, the JCHR has also asked that the guidance should be very clear.
As we have said, as the child gets older his right to privacy increases and the guidance mentions this on page two. However, there is no explanation of what is meant by Article 8 of the ECHR, which enshrines this, and how this could affect a searching scenario. Neither does it say that this right means that, wherever possible, a person of the same gender should search a child. On page 5 the teacher is told that a child should be searched by the same gender in the presence of a witness with limited exceptions. It is explained that a search of the opposite gender can take place without a witness if the teacher believes that there is a risk that serious harm will be caused to a person if the search is not carried out immediately, but there is no warning to the teacher to consider whether, in doing so, she is putting herself or nearby pupils at risk. There is no warning to the teacher to consider whether he is opening himself up to malicious allegations of inappropriate touching. I find it difficult to understand that given that the Government are protecting teachers from publication of allegations in Clause 13, but in Clause 2 of the same Bill they are potentially giving teachers a green light to do something that may risk their reputation even more, without such warnings in the guidance. It is not even put in a positive way, such as, “where at all possible, you should summon another teacher”. Nowhere is good practice mentioned.
On the matter of training, on pages 5 and 6, the guidance does not really encourage head teachers to ensure that staff authorised to search have adequate training. They only have to “consider” the matter. There is no mention of the sort of situation management training that takes place in young offender institutions, yet teachers are to be allowed to do the same things as the staff there.
Teachers do not want to do these things. It has often been said that they will completely alter the basis of the teacher-pupil relationship. The noble Baroness, Lady Hughes, makes a very good point about the need for sensitivity, understanding and knowledge in searching children with special needs or disabilities.
On page 10 of the guidance, reference is made to the power to examine and erase electronic files on such as mobile phones. While this may be perfectly okay in a case of simple bullying, there are more serious situations in which deleting a file may be deleting evidence in a criminal case. My noble friend Lady Benjamin will, I think, have more to say on this. I suggest that a single person’s decision about this is not good enough; reference should at least be made to a senior member of staff and the guidance should say so. I also think that parents should be consulted before this is done; this would involve parents in the school’s discipline arrangements, which is always a good thing.
The guidance is currently totally inadequate and I hope that the Minister will tell me that the department is willing to strengthen it. I am prepared to continue to work with officials until I am satisfied that the guidance truly helps teachers to make these very serious judgments. If we get this right, the situations that we fear will be very rare indeed, because teachers will know what is good practice and what is bad practice. Will the Minister allow his officials to continue to work with us in order to achieve the very good-quality guidance that this Government and the previous Government both wished for?
Baroness Massey of Darwen
My Lords, this is indeed a complex issue, as illustrated in the previous speeches. It was debated extensively in Committee and many issues have been raised again today. I was not planning to intervene here, but I am prompted to do so by the number of teachers who have contacted me and whom I have spoken to about searching. I wonder whether the Government realise and understand just how concerned teachers are about this and how distasteful they find it to have to do this in school. It is not only an issue of the rights, mentioned many times already today, of children, schools and teachers; I think it is a matter of common sense. There is a risk that searching a child in a school could destroy trust between teachers and pupils and have a detrimental effect on the ethos of a school. Many teachers have said exactly that.
I have one small anecdote: I was speaking today to the Children’s Commissioner, who said that she had also had many representations from teachers about this issue. She told a story about a 12 year-old boy who was on a newspaper round with a friend of his. The newspapers have to be cut out of a plastic band when they are given out for distribution to the boys and girls. One of the boys had put the knife used to cut the band into his pocket by mistake and ended up in school with it. He was searched because someone said that he had a knife and he was excluded from the school. There is a great danger that without excellent guidance, that kind of thing will go on.
Of course, there should be training and a careful exploration of the issues within the school. But it is important to have strong, clear rules about what is brought into school and strong enforcement of those rules, involving parents and the community. That should be emphasised in guidance—in fact, it should be the first lines of any guidance on prevention. Many good schools already do that. They are tough about bringing things into schools because that is in the school rules. I hope that the Minister will consider the amendments because this is a very serious issue for teachers and schools, and liable to be very destructive unless handled carefully.
Lord Sutherland of Houndwood
My Lords, I wish to comment briefly on Amendments 8 and 10, and to give my warm support to Amendment 8. We had an important debate on that amendment in Committee and the Minister pointed out the difficulties with primary schools. The difficulties have been met in a reasonable way, I believe, and I hope that in the spirit of good compromise all round we might move with the amendment and see it eventually in the Bill.
On Amendment 10 and following the remarks of my colleague, the noble Baroness, Lady Walmsley, guidance is immensely important—at least as important as what is in the Bill. I hope that the discussions that she seeks can be taken forward, and I hope that guidance, especially from the Secretary of State going down to schools, can be liberally sprinkled with the word “normally”. This is a very important word. It is not a weakening but indicates what the standard is and what good practice is meant to be. It indicates strongly that if the guidance is not accepted in any set of school rules or school practice, there has to be a very good reason that can be stated either when the inspection system requires it or alternatively, sadly, when it comes to exclusions or even court cases. I stress that the difficulty we had in Committee was over legislating for every item that might be searched for or for every individual case in which a search might be made.
It is difficult to specify each case. At one time who would have dreamt that we were supposed to use plastic cutlery on airlines? Yet that has come to be. We would rather have general guidance indicating good practice and good sense with the use of the word “normally” and therefore a requirement to give a reason for a change in what has been regarded as good practice until now. I ask the Minister to look closely at Amendment 10.
Baroness Benjamin
My Lords, as my noble friend Lady Walmsley said, I would like to pick up the subject of searching, as I would like to talk about the need for guidance to be provided by the Secretary of State regarding the erasure of data from electronic devices taken from pupils during a search incident. The erasure of data from electronic devices is a concern that was brought to my attention by the children’s charity Barnardo’s, and I declare an interest as a vice-president of the charity.
Barnardo’s understands the concerns around the use of mobile phones for viewing and displaying offensive material, and that teachers may wish to remove offensive material to prevent it being viewed or shared. However, there are concerns that teachers may use this power to erase data which could otherwise be used as legal evidence in court that a child is being sexually exploited or groomed for sexual exploitation.
It is well established that mobile phones are used as command and control devices in child sexual exploitation. Through the cases Barnardo’s has dealt with, the charity has found that one of the “tell-tale signs” of child sexual exploitation is the secretive use of mobile phones and the internet away from parents’ eyes. Children as young as seven are carrying mobile phones and they are increasingly accessing the internet via mobile phones from a variety of locations. The national guidance to local safeguarding children boards recognises that mobile phones are themselves often given as gifts to children who are being exploited and that they can be used to lure young people into being exploited or exploited further.
This is also recognised by police forces across the country; they acknowledge that gathering evidence for child sexual exploitation can be difficult. To deal with this problem, West Yorkshire Police has drawn up a list to help agencies, carers and young people provide the police with the intelligence they need to make convictions through phone-based intelligence. Intelligence is gathered and used in situations where there may be no evidence available or the victim is unable or unwilling to provide a police statement. This occurs in the vast majority of cases of sexual exploitation. Therefore, the opportunity to provide information as intelligence means that the police can build a comprehensive picture over a period of time and act upon it. This could interrupt and disrupt criminal activity in which young people are being exploited.
Child sexual exploitation intelligence includes details on suspects such as their names and nicknames, details of phone numbers and mobile phones used by suspects and details of any text messages or phone calls made by them or to them. It also includes details of locations where offences have taken place or which the suspects or victims visited, and dates and times that incidents of child sexual exploitation occurred—in fact, any links between suspects, their cars or locations and young people identified as being at risk of child sexual exploitation.
There are examples of prosecutions of men using Facebook to groom children for exploitation, but the Child Exploitation and Online Protection Centre—CEOP—also warns of the use of smartphones and 3G technology. CEOP warns that online child sex offenders are using more intimidating tactics to engage with, exploit and abuse children and young people. Reports of this are increasing. Text messaging is used as grooming behaviour, and this is also increasing.
This is not just an issue of the loss of child sexual exploitation evidence, but there are also similar concerns around deleting messages or data which may have been used for bullying or harassment. It is important that victims of cyberbullying are believed and get the support they need, and that the bullies are dealt with appropriately. Therefore bullying messages received on mobile phones should not be deleted in case they can be used to support victims of such harassment.
Conviction rates for child sexual exploitation remain disappointingly low. In 2009 Barnardo’s was aware of 2,893 victims—perhaps just the tip of the iceberg—yet there were only 89 convictions. Organisations such as CEOP and Barnardo’s are committed to making everyone at every level become aware of how we can all identify child sexual exploitation. They believe that texts and e-mails will be one way of showing behaviour over time.
The power in the Bill to erase data will be new to teachers. Therefore, the Secretary of State's guidance should be explicit about what data can be erased and should advise caution. I ask the Minister and Secretary of State to consider giving the guidance that teachers must record the nature of any material erased and the reason for its erasure. This should be done with a witness present.
Lord Peston
My Lords, I support these amendments, but I am bound to say it is with a heavy heart. I will explain why. I have been involved with education, educational philosophy and research into education for more than 50 years. When I think about what I believed when I started out, I realise that I must have been hopelessly naive. If I had been asked what the nature of a school was, I would have said that it was a place where people went to learn and teach, where values were developed and where one’s life was enhanced. Central to that were the teachers themselves. All of us know the difference that they have made to our lives. When I consider this group of amendments, I am forced to ask myself what has happened to our society. This section of the Bill, headed “Discipline”, could have been written for a prison or a concentration camp—but it is written for a school. It is also simply a repair job: at best, an Elastoplast. It does not solve any fundamental problems whatever.
I believe strongly that my noble friend's amendments do improve matters. They certainly make the Bill much more sensible and deal at least to some degree with the role of the teacher and the relationship between the teacher and the pupil. However, the fact remains that what is stated totally changes what some of us feel the teacher/pupil relationship should be. I do not believe for one minute that the Minister will accept the amendments, but it would be right to do so. It would certainly be right to test the opinion of the House on these matters. Some day, despite Governments of all parties kicking and screaming about these things, we will have to face up to the problem of social improvement and ask what has happened to our way of life and whether there is anything we can do about it.
Baroness Morris of Yardley
My Lords, I rise briefly to support the amendments—in particular Amendment 10 —and to say how much I welcomed the words of the noble Lord, Lord Sutherland. In a strange way, I do not think that there is a difference of purpose across the House about what we want to achieve. We understand the importance of good discipline in schools and we want to equip teachers to be able to secure that discipline in their classrooms, and for head teachers to lead in that. There is no difference of opinion here. We are talking about the necessary safeguards that need to go alongside it in an area as crucial as physical contact and search.
I remind Members of the House how we have already come unstuck on this in a different context, 10 or 15 years ago. There is confusion among teachers in schools about touching children at all—even about putting their arm around a child's shoulder to comfort them, patting them on the head to say well done, or acting in a human way towards children, however small they are and whatever their needs. We politicians know that what teachers think is the case is not the case in law and has never been the intention of Governments of any party. I remarked in Committee on the Bill that the Minister was sending out further guidance on the circumstances in which teachers could appropriately touch a child. It sounded just like the guidance that I sent out 10 years ago—and it will probably be just as ineffective. The lesson we learn from this is that once practice is embedded in a school and a set of things is believed by teachers, it is very difficult to shift it. What you cannot do in an area such as this is to set it in motion and then try to back-track at a future date. The guidance, the intention, the parameters and all those things have to go out clearly with the initial message, otherwise teachers get fearful and do not know what is expected of them and the law becomes confused. That is why when I look again at Amendment 10 in the light of the comments made by the noble Lord, Lord Sutherland, I see it as letting the Government stick to their wish to empower teachers to keep discipline. It has regard to the necessary safeguards for children, but does not make the mistake we made by not adding the clarity that we need at this early stage when we are giving teachers new powers. The Minister may reflect on that in his response.
Lord Cormack
My Lords, I have listened to this debate with mounting unease, concern and sadness. It is just over 50 years since as a young graduate schoolmaster I began to teach in a school. I listened with great interest and considerable sympathy to the points made by the noble Lord, Lord Peston, a few minutes ago. What has happened over those 50 years is that we have seen the destruction of childhood innocence and an erosion of trust. We have seen a situation where normal and reasonable behaviour—to take up another point that was made earlier—has to be legislated for. It is a very sad day. I do not know exactly what the solution is, but we must reintroduce trust into our lives at all levels, if we possibly can. We have got to be able to trust parents and those who teach. The way in which those who teach have been deprived of virtually all sanctions and all powers to discipline children is something the Government are seeking to address in the Bill, as their predecessors sought, very reasonably, to address it.
We have reached a very sorry state when we have to legislate for searches and decide when they are permissible and when not. I have one overriding feeling here. It is that if legislation seeks to prescribe and proscribe in too great detail we are continuing on a very slippery slope. I have great sympathy with the Minister’s desire to have notes of guidance to give advice, but at the end of the day we must be able to trust head teachers in schools to orchestrate discipline within those schools and to know what it is proper for children to bring to school, how they should be dressed and how they should address those who teach them, because the absence of any form of respect in many schools is at the root of the problems within those schools. Let us move towards a situation where in all schools, as in some that we have read about recently—sink schools that have been rescued and become beacon schools—we really trust those who are in charge to behave normally and reasonably, and have the expectation that those they teach will behave normally and reasonably and that the parents do likewise.
Just to take up one point that has been alluded to, I do not believe that any child of any age should be allowed to have a mobile phone in his or her possession during school hours. It may be necessary to have possession of a phone as a means of communication outside because of transport and all the rest of it, but they should leave it in a secure place—a locker—when they get to school and remove it when they go, but not be allowed to have it in school. It is entirely permissible to examine those instruments if there is reasonable ground to suppose that they are being misused in the way to which the noble Baroness referred a few moments ago.
I close my random remarks, which I was not intending to make but felt provoked into making, by saying that unless we can reintroduce trust and recreate a climate where childhood innocence is regarded as a precious commodity, we are not going to achieve what I think in all parts of the House we want to achieve.
Lord Elton
My Lords, since we are on the subject of context in these amendments, I rise very briefly to say how exceedingly complicated that context is and how it needs to be kept in mind. If there was perfect discipline in every school, none of this legislation would be necessary. Why has it been lost? Has human nature changed? No, it has not. Has the perception of Governments and lawyers changed as to what is acceptable behaviour? Yes, it has.
The noble Lord, Lord Baker, is no longer in his seat, but back in 1988 he had a problem and asked me to write a report on discipline in schools. Actually, I commend it to the Government again; it remained on shelves for many years. Basically, you have to start discipline preferably before a child comes into school and when it comes into school. It is not beating them, it is managing their behaviour. I suggest that what the Government need urgently to do, if things have not changed since the days when I was better in touch with these things, is to see what teachers are taught in colleges of education about how to do that.
When I began that inquiry, I was told by every teacher training college in the country that of course they taught classroom management. We then did a survey of those they had actually through their hands in the past 15 years and found that only one of them did. All the others said they did it as a cross-curricular subject. I discovered this ahead of the report because I was a teacher myself and I finished up teaching in a college of education. I lost the attention of my adult class, quite unexpectedly, halfway through a term and I asked them, “What are you thinking about?”. They said, “We are thinking about our first teaching practice next week”. I said, “You needn’t bother, you know far more than any of the children will and all you have to do is see they behave properly”. “How do we do that?”, they said. I said, “The Department of Education will have told you—hasn’t it?”, and nobody said a word. So we abandoned the French Revolution and moved into classroom management.
I am becoming garrulous. I merely want to say that these measures are necessary because, broadly speaking, in an enormous number of schools teachers have really lost control of how the children behave in the classroom. They began to do that in the 1960s with child-centred education. We are drawing back from that now but the senior ranks in many of our schools are actually the products of that who have now reached the top of the teaching tree, and remedial action is necessary. Therefore, I think that we are right to be discussing these issues and I am very interested to hear what my noble friend will say about how we are going to put discipline back into the classroom.
Baroness Howe of Idlicote
My Lords, this has been an extremely interesting debate about a very serious subject, which has encouraged a lot of your Lordships to look back at better times when it would seem that it was somewhat easier to make the right decision. We have to face the fact that things have moved on. I particularly support the amendment tabled by the noble Baroness, Lady Walmsley, because it seems that what was being said about the guidance, and indeed what the noble Lord, Lord Sutherland, said, is probably fairly accurate in that it needs tidying up. My reading of the guidance was that teachers had the right to refuse to take part in searches, so there is at least that aspect in which a teacher can exercise their own feelings and responsibility about these things.
The points made by the noble Baroness, Lady Benjamin, were worrying. It may well be that the noble Lord, Lord Cormack, is right, that if every school could agree a principle—and maybe that should be written into the Bill—that no telephones are to be brought in, or that they must be left at the gate and picked up on the way out, that might be an answer. I suspect that it would not be as simple as it might sound. Alas, we have got to look practically at what we do now. I do not envy the Minister and his team, because to get it right for this current moment is a very important but difficult job.
Lord Storey
My Lords, I was not going to speak in this debate, but so many important comments have been made that I feel that I want to add my few words.
I very much agree with the noble Baroness, Lady Morris, that this is about safeguarding both the child and the teaching staff. I also agree with the noble Lord, Lord Cormack, that we need to engender trust in a school. The noble Lord, Lord Elton, reminded me about his report on discipline, which I remember quite well. I remember having to write an essay on it—so he is to blame.
The problems of discipline in schools are not just to do with pupils. They are to do with that group of people we were talking about in a very positive way: parents, and—dare I say it?—the legal profession. You can just imagine a situation that happens daily: that of a teacher, say in primary school, who in innocence says “Come on, hand over that game you’ve got in your pocket”, stupidly goes to reach for it, and the next thing is that there is a legal action. So all that trust has evaporated.
The guidance has to be very clearly laid down. Pupils should not have mobile phones in classrooms—and this is hugely important. It is very dangerous, for all the reasons that we have heard. Of everything that has been said, that is probably the most important, because it is not just about grooming children, but about other pupils bullying each other through mobile phones.
So why on earth schools are allowing children to have mobile phones in schools, I do not understand. In small schools, they can be handed into the school office or, as has been suggested, go in a locker. I hope the guidance is very clear. It is about ensuring the protection and the safeguarding of the pupil, as much as the safeguarding of the teacher.
Baroness Howarth of Breckland
My Lords, I had not intended to speak, but it was in hearing the noble Baroness, Lady Morris, talk about clarity, that reminded me that I had had a letter from someone in a school. Your Lordships will understand why I quote it:
“Please could you register my welcome overall of the trust put in teachers and school leaders to manage behaviour more effectively in schools and colleges. However, I am concerned that the measures taken to improve the authority of teachers are being seen as threats to the child and to the member of staff concerned. Searches should be allowed by staff and good practice ensures that a teacher will ask for a witness for the search”.
It shows that the common sense that the ministry is trying to encourage exists in schools, but that there is a lack of clarity. The real need is for clear guidance, and indeed the amendment put down by the noble Baroness, Lady Walmsley, would help people to understand. I think it was the noble Baroness, Lady Morris, who said that there are so many things that are believed in schools that are not actually the law or statute.
This has been a wonderful Second Reading debate, I have to say. I have thoroughly enjoyed some of the speeches, and not having had an opportunity to get to the actual Second Reading, I am now taking my opportunity, too. We have to remind ourselves that not everything was wonderful in the past, and that there are some things that are significantly better. One thing that is significantly better is child safeguarding. We abandon anything that continues to safeguard children, as the noble Baroness was saying with regard to Barnardo’s, at our risk.
I am not an educationalist but I suspect that my pedigree in safeguarding is probably as good as anyone in this House. I encourage the Minister to think carefully before abandoning those controls where it is quite clear that teachers have the common sense to think that they need a witness. But it is not always the teachers who end up doing these things. I have known of caretakers being asked to “take that mobile phone off young Jones”. It is about people who would have other motives for touching a child.
I also believe that no male adult should handle a young woman aged 12 or 13, and certainly not without a witness. If you talk to young girls, they say that they feel that that is an assault on their dignity and it is something that goes with them. I encourage the Minister to think carefully about ensuring that we have either the amendment tabled by the noble Baroness, Lady Walmsley—to confirm to the Front Bench, I am suggesting one of the amendments—or extremely clear guidance for teachers so that they know that they do not search in unsafe situations.
Lord Hill of Oareford
Perhaps I may start with some general comments about some of the themes that have emerged. I agree with what the noble Baroness, Lady Morris, said about her underlying point, consistency, and the difficulty that we as legislators have in translating what we are trying to do in classrooms so that teachers know where they stand. That links to the point again about clarity in guidance, to which I will come back later.
My noble friend Lord Cormack, who has not spoken on the Education Bill previously, made a powerful speech about the importance of trust, which we all share. By the same token, some of the discussion today highlighted tensions between wanting to get to a position where we trust professionals more—and I think we would all agree with that—while wanting to have our own safeguards in place to ensure that in trusting them the things we most care about are protected. That is a difficult balance. My noble friend Lord Storey also threw in parents and lawyers for good measure.
It is absolutely right that schools are operating in a far more complicated environment than was the case in the past. I very much recognise the description given by the noble Lord, Lord Peston, of the purpose of a school, which I think still holds true today. But they certainly have to operate in a far more complicated world where they are asked to do much more by society than was once the case. I recognise that there are anxieties, which I will attempt to address, about the extension of the powers on search. I see them as an attempt to provide greater space in a very small number of exceptional cases for professional judgment to be exercised by heads and teachers, and to try to enlarge the space where we can trust heads to make the judgments that they believe are right to safeguard the children in their care.
There was broad agreement that we want head teachers and teachers to be able to ensure the safety of the children. In fact, it is important to say that most schools are safe places in which children can learn. It is important to get that in proportion and not to imagine that we are confronted with a problem that does not exist—it is important to focus on the problem that does exist.
When the previous Government introduced searching legislation, they recognised that unfortunately there are instances where children have items that can cause harm or injury to themselves or to others. Under existing law, members of school or college staff can search for a number of harmful items, including knives and weapons, alcohol, illegal drugs and stolen items. We are proposing a small extension to those powers so that teachers can keep all potentially harmful items out of the classroom.
I want to set out briefly, on the record, the safeguards within the legislation that ensure these powers are used appropriately. A search of a student without their consent can only be carried out in certain circumstances. First, the staff member conducting the search must be designated by the head teacher or the principal. I agree that the head teacher should consider the skills of any staff member they are designating, and I am sure that most will do so. In the light of views that were expressed in the debate on this issue in Committee, we have taken on board the recommendation that, when designating a member of staff, the head teacher should consider whether that member of staff needs any additional training. That recommendation is included in the department’s published advice to schools.
Secondly, a member of staff must reasonably suspect that the pupil is in possession of a prohibited item. A pupil cannot be randomly searched on a whim. Thirdly, staff may not require the student to remove any clothing other than outer clothing. These conditions—which are in law—will remain unchanged. It is also the case that a search can only be carried out by someone of the same sex as the student and in the presence of a witness except—and this is the change which we are seeking to make—in certain emergency situations. The requirement that the searcher is the same sex as the pupil and that a witness is present will continue to apply in nearly all searches, as a number of noble Lords have argued. Where it is practical to summon a staff member of the same sex as the pupil and a witness then a teacher wishing to conduct a search must do so. There is no disagreement at all on that.
Baroness Hughes of Stretford
We have had a good debate on this set of amendments and once again we have explored some of the items that we considered very thoughtfully in Grand Committee. The important point to make is that we already have legislation on this issue. It is legislation that has been crafted over many years, it is carefully balanced and it does many of the things that noble Lords around the House have been talking about in terms of balancing the rights of parents, teachers and pupils. It goes some way towards doing what my noble friend Lady Morris considered, which is safeguarding pupils. I accept that that has to be at the heart of this.
What we are confronted with is a Bill that extends powers which already exist, and we are trying to reflect back to the Government the fact that if they are going to extend those powers, they still have to maintain the balance between all the rights we have talked about. I understand the noble Lord’s points about the role of guidance and, as someone quite rightly pointed out, in previous Governments we provided it as well. But guidance has a role to expand on the core principles set out in legislation. I think that that is the issue at heart here. We have lost sight of the core principles in terms of searches, discipline and how all that is carried out. We are attempting to redress the balance.
The noble Lord talked about training and the guidance, which has come out relatively late. I point out to him that, on the issue of training, the guidance states:
“There is no legal requirement for a head teacher or authorised member of staff to be trained before undertaking a ‘without consent’ search”.
I hope that, when the guidance is worked on, that wording will be reflected on further and redrafted into a more positive statement about the need for training. I certainly feel that the view of the House is that it is important. However, the noble Lord has gone some way to reassuring us on the point.
I come back to the more fundamental points that we have been addressing: whether it is right for these searches to be carried out alone, whether a witness needs to be present, and to some extent the point raised by the noble Baroness, Lady Walmsley, about the need for same-sex searches. Our key point is that a witness is the key, core and fundamental protection of the rights both of the pupil and of the teacher. A number of noble Lords around the Chamber have talked about teachers being concerned about the extended role being placed upon them. They were fearful of their role and they are becoming more fearful of the expectations that are being laid on them. We have not heard of any pressure coming from teachers demanding this additional power. If anything, they are saying that they do not want the extra burden and responsibility. The issue of having a witness present is absolutely fundamental, and I shall return to it in a moment.
Finally, Amendment 10 concerns school rules. Again, the debate around the Chamber has highlighted how easy it is, if we are not careful, for rules from school to school to vary quite considerably. We have already heard that the rules for maintained schools may be different from independent schools, which in turn could be different from academies. Where is all this going in terms of a kind of consensus about what is right and what is wrong? All we have asked for is that the Secretary of State should issue guidance to specify what would be prohibited items in the broadest sense so that parents throughout the country would have confidence that there was some unanimity across different schools.
Our position is this. On Amendment 6, the noble Lord has gone some way to reassure us, and therefore I shall withdraw it shortly. But in doing so I give notice that we intend to divide the House on Amendment 7, which relates to the issue of a witness being present at all times. We think that that is a fundamental, core principle that should be on the face of the Bill. I beg leave to withdraw Amendment 6.
Baroness Hughes of Stretford
My Lords, I wish to test the opinion of the House.
Lord Low of Dalston
“( ) Regulations must make provision that if a pupil has been excluded from school for a fixed period on two or more occasions in a 12 month period or is at risk of permanent exclusion, a head teacher shall ensure that—
(a) there is an assessment of whether that child has unidentified learning needs;(b) there is a review of the effectiveness of the special educational provision being made if that pupil has identified special educational needs;(c) there is a review of the effectiveness of the reasonable adjustments being made if that pupil has disability.”
Lord Low of Dalston
My Lords, I shall speak also to Amendments 24 to 28. I shall speak as briefly as I can because these amendments had a good airing in Committee. However, I was unfortunately unable to be present when they were discussed and so I will take this opportunity to say a few words on them—not just for the sake of it, of course, for the Government have come some way to meet us, but because some concerns remain, which have been raised with me by the Special Education Consortium, on which it would be helpful to have reassurances from the Minister.
The amendments relate to Clause 4, which toughens up the arrangements for pupil exclusions. Clause 4 makes significant changes to the appeals process and removes the power from the proposed independent review panel to order the reinstatement of an excluded child except in cases of direct disability discrimination. There are many children with special educational needs who are not the subject of disability discrimination, and the purpose of the amendments is to introduce safeguards into the exclusion process to deal with their case.
Amendment 15 makes provision for regulations to require that where a pupil has been excluded from school for a fixed period on two or more occasions in a 12-month period, or is at risk of permanent exclusion, a head teacher must ensure that there is an assessment of whether the child has unidentified learning needs, that there is a review of the effectiveness of the special educational provision being made if the pupil has identified special educational needs, and that there is a review of the effectiveness of the reasonable adjustments being made if the pupil has a disability.
Amendments 24 to 28 would require regulations to make provision for a number of things: for parents to request a SEN expert to advise the panel on SEN issues; about the information parents are given on their right to request a SEN expert; the skills and qualifications that a SEN expert must have; the ability of the SEN expert to review the needs of the child and whether the school has put the correct support in place; the duty of the school to co-operate with the work of the SEN expert; and the ability of parents to select a SEN expert of their choice.
The Government have moved some way on these issues from where they started in the other place and it is clear that they do not wish to disadvantage children with special educational needs. Indeed, they have published draft guidance on exclusions which recognises the need to protect children with SEN, which I very much welcome. However, there are some outstanding concerns. The guidance is clear that head teachers should, as far as possible, avoid permanently excluding children with SEN. However, the guidance needs to be more specific and detailed at this point. Have all the steps been taken which need to be taken? This could include additional adjustments, critical extra support or other interventions which may play a crucial role in preventing exclusion. The guidance moves too quickly to discussing alternative placements without encouraging schools to consider whether they have answered all these questions. I should be grateful if the Minister could address this point in his response.
The guidance focuses heavily on preventing exclusions of statemented pupils. This is, of course, very important. However, it is important also to bear in mind that some 18 per cent of children, or roughly 1.4 million children, with a special educational need do not have a statement. I ask the Minister to consider extending the guidance to address the needs of children on school action or school action plus. Children on school action plus may have substantial needs but do not have the protection afforded by a statement of SEN. Such children are more than 20 times more likely to be excluded than the rest of the school population and so additional safeguards are clearly needed in their case.
I turn now to the remaining concerns about the SEN experts and the role they could play in advising an independent review panel. I welcome the clarity that the draft guidance brings in relation to the impartiality and expertise of the SEN expert, but retaining parental confidence is key to the success of these reforms and it is with that in mind that I have tabled these amendments again. The school’s role is key here and yet the guidance does not make clear that schools should be required to inform parents of their right to request a SEN expert when their child is excluded. The SEN expert clearly has a vital role to play in protecting the interests of the child and yet the guidance states in terms that the expert’s role does not include making an assessment of the pupil’s special educational needs or making a judgment about whether the school has taken the appropriate steps to meet the child’s needs.
As I have said, I welcome the guidance’s clarity on the need for an expert on special educational needs. However, it remains unclear whether this expert will have the requisite understanding and experience of the disability or SEN in question. I ask the Minister to consider revising the guidance to make it clearer that “expert” should also mean “relevant”.
My final point on the expert relates again to parental confidence. As it stands, the expert will be paid for by the local authority if the child is in a maintained school and by the school if in an academy or free school. While I welcome the guidance stating that local authorities should take reasonable steps to offer a choice of expert and that the expert cannot be connected with the case, it remains a concern that the paymaster should be the institution that the parent is appealing against. If it could be made unambiguously clear that parents could have the expert of their choice, that would surely help to bolster confidence in the independence of the system. I hope that the Minister can give me some reassurance on this point and on my other points as well. I beg to move.
Lord Touhig
My Lords, I support the amendment of the noble Lord, Lord Low, who has made a powerful case articulating the concerns that still exist despite the good debate that we had in Committee on exclusions. I do not intend to rehearse the arguments deployed in Committee, save to remind the House that the Government’s equality impact assessment states that 72 per cent of all pupil exclusions from schools in England are youngsters with special educational needs. That 72 per cent is a very high figure, and one we need to keep in mind as we seek to resolve these issues.
Yesterday, I attended the launch of Finished at School, arranged by an organisation called Ambitious about Autism. This document poses the question:
“Where next for young people with autism?”.
It contains a number of case studies and poses questions about post-16 education for youngsters with learning difficulties, particularly with autism. Among its questions, it asks for a clear, legal right to educational support up to the age of 25 for young disabled people. It says that a funding system that gives young people and families more information, choice and support is needed, as is a cross-government focus on outcomes and destinations for young disabled people, and a further education workforce with the skills to support young people with autism to achieve their ambitions. Sarah Teather, the Minister of State responsible for these matters, was present and warmly welcomed the report yesterday. She said that the Government had every intention of living up to the ambitions set out in their Green Paper. All this is to be welcomed.
Before any noble Lord questions how my argument is relevant to the question before us now of exclusions, I will explain. In England, we have 66,000 young people with autism in the 16 to 25 age group. Yet only one young person in four with autism in that age cohort continues their education beyond school. That is why we have to do everything possible to reduce the huge level of SEN exclusions from our schools. For three-quarters of young people with autism, attending school until the age of 16 is the only education experience they will ever have. That is why we have to be so careful about exclusions.
On Amendment 15, as the noble Lord, Lord Low, pointed out, the draft guidance makes some welcome noises on this but the trigger for assessment is not as clear as this amendment would make it. On Amendments 24 and 25, it would appear that parents will be told that they can request a SEN expert of their own but we do not know how this will happen or what information parents will be entitled to receive in order to achieve that.
On Amendment 26, the guidance makes it clear that the SEN adviser should have appropriate training. However, like the noble Lord, Lord Low, I am still concerned that that training should be specific to the disability of the person with SEN being examined. On Amendment 27, the guidance is clear that it will not be the role of the SEN expert to undertake an assessment of needs, which is somewhat disappointing. Finally, on Amendment 28, it will be for the local authority to select the SEN experts for the parents to choose from.
There are still many questions to be asked and answered on the whole issue of the exclusion of youngsters with SEN. I look forward to the response from the Minister, who has demonstrated to me, and no doubt to others across the House, that he is listening. He certainly did that in Committee. I hope he listens to us now.
Baroness Warnock
My Lords, I strongly support the amendment introduced by my noble friend Lord Low. There is often a tendency to treat SEN as if it contains only one group of people. I have had many letters from parents who find that the school may think that anybody is an expert in their child’s particular special need as long as they are an expert in SEN. That is far from true. This is particularly noticeable in the case of autistic children where understanding the management of autism, as far as it can be managed particularly in the school context, is a very specialist subject. That is why so many autistic children are excluded from school. It is of enormous importance that the SEN expert, who must quite properly be on the panel, should be an expert in the relevant disability.
It is also important that one should not think of SEN as completely contained in those children who have statements. As my noble friend said, at least 18 per cent of people with disabilities do not have a statement. Long ago, this 18 per cent without a statement came to be known as the “Warnock children” because I was particularly interested in them. They were often neglected because their disability was not serious enough or perhaps did not seem so. Therefore the local authority had no statutory duty to provide for them.
Exclusions, which I am sure all noble Lords agree should be avoided as much as possible, need to be carefully scrutinised for any child who is on the lower grading of disability. This often involves children with behavioural and emotional difficulties, who are likely to behave badly at school and incur either temporary or ultimately permanent exclusion. I welcome the improvements that have been made and I think that things are going in the right direction. However, these questions about children who do not have statements and about the choice of relevant expertise on the panel are of the greatest importance.
Baroness Hughes of Stretford
My Lords, I speak to Amendments 17, 19, 21 and 29, and also support Amendment 15 and Amendments 24 to 28 that the noble Lord, Lord Low, and my noble friend Lord Touhig have spoken to. In particular, I agree with the noble Lord, Lord Low, that Amendments 24 to 28 have, in quite large measure, been addressed by the guidance that we received from the Minister yesterday. I am pleased that, certainly at the stage of the review panel, which is the final stage in the process of reviewing an appeal, the Government have seen fit to make provision for most of the things demanded in Amendments 24 to 28: for a special needs expert to give their views, for the parents to have a right to that, for the parents to be told about that, and so on. That is all welcome.
However, the Government guidance does not address Amendment 15, which is similar in intent to our Amendment 17. They both seek to ask—the noble Baroness, Lady Warnock, just alluded to it—whether we can make sure that relevant information, particularly about a child’s special educational needs and especially unidentified needs, has been brought into the process not at the final stage of the review panel but at the very earliest stage of the head teacher’s decision and particularly at the point at which the responsible body—that is, the governors of the school—has been asked by parents to review that decision.
Amendments 17 and 19, in particular, concern the exclusion of pupils who have unidentified special needs. There is a principle of natural justice underlying the amendments: that where a child is at risk of exclusion, the decision-maker should have the full facts about any special educational needs—not at the final stage, as I say, but at the earliest possible stage. This is particularly important where needs have not been identified, so these amendments would ensure that children with special educational needs but whose needs have not been adequately addressed by their schools are not permanently excluded. In Amendment 17, that is by ensuring that when “the responsible body”—that is, the governing body—is making the initial decision on whether to affirm the head teacher's decision, it must,
“consider a report … from the special … needs co-ordinator”,
or expert. In Amendment 19, it is by ensuring that when the review panel is considering the case at the final stage, it has a report.
I accept that, alongside Amendments 24 to 28, Amendment 19 has largely been covered by the Government, which is great. Yet in relation to Amendments 15 and 17, while the Minister’s letter accompanying that guidance says that the responsible body as well as the review panel should take account of any relevant information in relation to pupils’ special educational needs when reviewing the decision to exclude there is, first, no requirement for the head teacher to take cognisance of that information when taking the initial decision to exclude and, at the level of the governing body in deciding whether to review that decision there is, secondly, no right for the parent to have a special needs expert. The guidance refers simply to the governing body having information on the child's special educational needs already held by the school. It does not precisely cover the circumstances where such needs have not been identified because it simply refers to the school making available to the governing body information that it already has, not seeking a wider assessment of the special educational needs that the child may have.
Surely it is better to have this expert view early in the process so that an exclusion may be prevented rather than only at the final stage, when a review panel is deciding whether to endorse the decision. That is particularly so given that the review panel does not, according to the Government's proposals, have the power to reinstate the pupil. I very much support Amendment 15 but if the noble Lord, Lord Low, decides not to press that amendment then I give notice that I would like to take the opinion of the House on Amendment 17, which would similarly bring the special needs expert person into the process earlier on to prevent the exclusions.
Amendment 21 would empower the exclusion review panels to require the schools to reinstate a pupil if they are satisfied that that is the right thing to do. We had a long debate about this in Grand Committee, when there was a very strong view across the Committee that this was a principle of natural justice—that if a decision made against someone is later found to have been flawed, that decision should not stand. Yet that principle is not upheld under the clause and the right to insist on the reinstatement of an unfairly excluded child is withdrawn.
In Grand Committee the noble Baroness, Lady Walmsley, among others, expressed similar concerns. It is rather surprising that the only amendment in relation to the power to reinstate has come from me and my noble friends, because I thought that the consensus of opinion in Committee was in support of that. I accept that heads may be in a difficult position if a panel were to reinstate, but we also had a sensitive discussion in Grand Committee about what should prevail in those circumstances. I think we agreed that given the impact on the child of having a decision by the review panel to reinstate, that is a far better outcome for the child, even if after discussion the child goes to another placement because of all the issues that have preceded that decision. It gives the child some rights in relation to flawed decisions which, at the moment, are not contained in the Bill.
Amendment 29, briefly, would require,
“a school to retain an excluded pupil”,
on its school roll,
“and to fund the pupil’s education until the pupil is no longer of compulsory … age”.
Our intention here was that the schools should retain financial responsibility but, more importantly, the responsibility for progressing that child and for their final outcomes in whatever alternative provision they went into. The intention was twofold: first, to give schools the opportunity to have a second thought before making the final decision on exclusion, knowing that they would retain responsibility for a child, as a kind of check and balance in that system and, secondly, to make sure that the school has some responsibility for the final outcomes for the child—even if the child goes elsewhere.
The Minister has sent me a letter and the department has issued a press notice on the pilots that the Secretary of State has announced, which are not the same as those proposed in our amendment but go some way to exploring the potential for schools to have responsibility for arranging an alternative decision. It is not the same as giving schools the responsibility of keeping a child on the roll. However, it involves the schools having the finance that goes with arranging alternative provision and the responsibility for ensuring the equality of that provision and for staying in touch, albeit more informally, with what happens to that child. I welcome that provision and I look forward to hearing the outcome of those pilots.
Although there is some movement in relation to Amendments 19 and 29 in the guidance, if the noble Lord, Lord Low, does not press his amendment to a vote, I would like to take the view of the House on Amendment 17.
Lord Sutherland of Houndwood
My Lords, I welcome the movement that there has been on the principles of Amendments 19 and 29 because they are sensible principles. The moves of the Government go some way to reassuring me there but I want to comment on Amendment 21, which is clearly a crux amendment in terms of overturning the powers that are specifically included under subsection (1) of the proposed new clause in Clause 4(2)—the power of a,
“head teacher of a maintained school”,
to exclude permanently.
I want to retain that power and I do not wish to give the review panel the powers to overturn it. The reason I give for that is that it would produce a virtually impossible situation for both the school and the pupil. The case would be a cause célèbre by the time it came to this stage and it would not do either any good. There is sufficient safeguard in the Bill for the school to be very careful before it moves to such an extreme conclusion. The safeguards come in subsection (4)(c) of the proposed new clause in Clause 4(2), where it is hinted—indeed, it is said explicitly at one point—that the review panel may consider the procedures of the responsible body as flawed,
“in the light of the principles applicable on application for judicial review”.
That seems a very serious warning to a responsible body, be it a head teacher or a governing body, before making such a final judgment.
I would hope that that would be sufficient to deter bodies from, not frivolously, but perhaps injudiciously or in some weakening sense, causing an individual to be excluded unnecessarily. The suggestion that the school would be considered responsible for the financial provision for the future education of that individual is a fair warning to the school. Even if the higher motive did not prevail, the lower one might well do so in the school taking responsibility for what could be a very expensive course of education. I beg to differ on Amendment 21.
Lord Hill of Oareford
My Lords, as the noble Lord, Lord Touhig, powerfully argued, we know that exclusion disproportionately affects some of the most vulnerable children in society. It affects particularly children with special educational needs or disabilities and we know that pupils with statements of SEN are eight times more likely to be excluded than an average child. That knowledge lies behind the amendments in this group, and I will try to address as best I can the concerns that underpin them.
There is agreement across this House that the goal of policy overall should be to reduce the number of exclusions by improving behaviour in schools. We are seeking to do that with these measures but we also know that there are many potential factors that contribute to a pupil’s behaviour. Therefore, there needs to be a wide-ranging response to this issue, which is why we are looking at trying to reform the whole exclusion process and trialling, as was mentioned by the noble Baroness, Lady Hughes of Stretford, a new exclusion system in local authorities across the country. I will come back to that in a moment. Overall, the aims of our reforms are to try to support schools to intervene earlier to identify underlying issues; to ensure that proper consideration is given to pupils’ needs throughout the exclusion process; and that where a child has to be excluded, to ensure that they receive a decent education, suited to their needs, so that exclusion from a school is not an exclusion from a good education.
We are trialling this new approach over the next three years and are looking at making the schools taking part in the trials responsible for any pupil they exclude, and accountable for both their attainment and attendance. Schools will get a devolved budget from which they will be expected to commission suitable alternative provision for excluded pupils, holding providers to account for the quality of the education that a pupil receives. Schools will also be able to use this budget to intervene with pupils at risk of exclusion—trying to spot these issues before it is too late—to tackle any underlying causes of poor behaviour.
The evaluation of these trials will pay particular attention to the outcomes for pupils who are most vulnerable to exclusion, such as pupils with special educational needs or those—we have not mentioned them today but we did in Committee—from ethnic groups with a disproportionately high exclusion rate.
Lord Elton
My Lords, will the noble Lord forgive me as I may have misunderstood him? Did I understand him to say that there is a separate budget for children who have been excluded? If so, would this be additional? That would be an inducement to exclude which is not what we wish to encourage.
Lord Hill of Oareford
The idea behind the trials—I think it is based on what has already been happening in Cambridgeshire—is that the budget which currently sits with the local authority to pay for alternative provision would effectively be devolved to schools. Schools in that case would have a very clear incentive not to end up dumping a child in expensive provision but to do their best early on to make the best possible provision they can and seek to avoid exclusion. In Cambridgeshire the number of permanent exclusions fell when it tried this approach from more than 500 a year to fewer than 100. However, the experiences of these authorities also show us that this is not something to be rushed and that it requires careful implementation. Our view would be that we should test the approach rigorously, evaluate it and then legislate.
The point about an automatic trigger was raised by the noble Lords, Lord Low and Lord Touhig. We are seeking to promote early intervention through the use of multi-agency assessments. Following comments made at an earlier stage, we have already made clear in our guidance that schools should consider arranging such an assessment for pupils who display continuous disruptive behaviour. The noble Baroness, Lady Hughes, said that the issue of early intervention was not properly addressed in the draft guidance. I thought we had addressed it but it is draft guidance so I welcome her views on it as I would views from other noble Lords. We have reinforced the importance of multi-agency assessments in the draft I have circulated. I would argue that we should leave the detail of the trigger for such assessments to the discretion of schools. I accept that in a lot of cases two fixed-period exclusions might be an appropriate trigger but in some cases a single serious incident of out-of-character poor behaviour might be sufficient cause for concern.
With regard to allowing independent review panels to be able to reinstate, there are cases—the Government would argue and I think it is a point that has just been echoed by the noble Lord, Lord Sutherland of Houndwood—where sometimes unfortunately exclusion is necessary as a last resort. We want a system which works for the education and welfare of all pupils at a school. It is right that, in some cases, schools should be directed to reconsider their decision to exclude a child. It is also right that a school should retain a level of responsibility towards a pupil, even if that pupil is excluded. However, a directed reinstatement is not necessarily in the best interests of an excluded pupil and, as we heard in Committee and from evidence given to this House and in another place from head teachers, it can have a devastating impact on the morale of the other pupils and staff.
We hope that our system of independent review panels will provide access to a quick, fair and independent process for reviewing an exclusion. However, we have put in safeguards in particular regarding the role of the special educational needs expert. Our revised guidance gives particular emphasis to ensuring the fair treatment of pupils who are most vulnerable to exclusion. I am grateful to the noble Lord, Lord Rix, who sadly is not here today, and to the noble Lord, Lord Low, who I am meeting again tomorrow on this subject. I am grateful to them for the meetings we have had on this issue and to the Special Educational Consortium. I am grateful for the very helpful contributions they have made while we have been developing the guidance.
The guidance makes clear that schools’ duties under the Equality Act not to discriminate against, harass or victimise pupils because of disability need be taken into account when deciding whether to exclude a pupil. It also says that schools must ensure that their policies, such as their behaviour policy, do not discriminate against pupils by unfairly increasing their risk of exclusion. We have retained the existing statutory guidance that, as far as possible, schools should avoid excluding a pupil with a statement of SEN. We have strengthened this position to make it clear that, where a school is considering the permanent exclusion of a pupil with a statement, it should begin a discussion with the responsible local authority, highlighting its concerns about the placement of the pupil in the school and the possible need for an alternative placement. I hope that these discussions would decrease the likelihood of pupils with a statement being excluded. Where a pupil does need to be excluded, we hope it will help support the local authority to ensure that appropriate provision is put in place quickly.
Amendment 17 relates to the governing body review of exclusion. We think that where a pupil is permanently excluded there needs to be a quick and fair process for reviewing this decision and that the process should give proper consideration to a pupil’s SEN. The governing body review provides an appropriate and proportionate first stage for reviewing a head teacher’s decision to exclude.
The revised guidance makes clear that governing body reviews should have access to relevant information about a pupil’s SEN, such as a statement of special educational needs and the outcome of any multiagency assessment arranged by the school. I agree that in many cases an important part of this information would be a report from the special educational needs co-ordinator, but there may be occasions where another member of staff is better placed to provide detailed information on a child’s special needs. I think that requiring information about the pupil’s SEN to be provided to the governing body is absolutely right but I do not want to prescribe precisely who needs to provide it.
Where a pupil is excluded, there must be a quick process for reviewing the decision. As we have said, we think that the governing body provides an appropriate and proportionate first stage for reviewing a head teacher’s decision to exclude. Where a governing body takes the difficult decision to uphold a permanent exclusion, there must be a right for a parent to ask for it to be reviewed by an independent body. Our independent review panels will allow that to happen quickly and will improve on the current system in providing extra help for excluded pupils with SEN. The introduction of an SEN expert offers a significant additional safeguard. The SEN expert would be free to submit written evidence to an independent review panel but they must be present at the review. We propose to place a requirement on independent review panels that, where appointed, they should seek and have regard to the expert’s views.
As regards the detailed points on regulations made by the noble Lords, Lord Touhig and Lord Low, I can reassure them that many of the things they are seeking to place in regulations will be there. Regulations will set out the right for all parents to request an SEN expert and put a duty on schools to notify parents of this right when a governing body upholds a permanent exclusion. We are clear that the expert must be someone with sufficient relevant professional expertise—that point was raised by the noble Lord, Lord Low—to be able to offer expert advice; for example, an educational psychologist. Because we do not want inadvertently to rule out someone who would be suitable for this role in a particular case, we intend that the details of who is eligible to be an SEN expert will be clarified in statutory guidance rather than in regulation, so that review panels have discretion to choose the most appropriate expert in each case. We have had very helpful discussions with the Special Educational Consortium about the sort of person who would be eligible for this role which we are keen to continue.
I agree with the point raised by the noble Lord, Lord Low, that all parties to an independent review panel must have trust in the advice of the SEN expert. This is why we are proposing to make it clear that local authorities and academies should offer parents a choice of SEN expert in order to reinforce their confidence in the appointment. These expectations will be set out in statutory guidance. The guidance also makes clear that where a pupil has identified special educational needs, we expect schools to provide to the panel, and the expert, any relevant information about those needs and the steps that the school is taking to manage them. This includes a pupil’s statement of SEN, the annual review or the outcome of a multiagency assessment. Parents will also be able to submit written evidence explaining if they feel that their child’s special educational needs are relevant when making their case to the review panel.
Parents will have the right to request an SEN expert and the expert will be able to advise the panel on the parent’s case. That could include advising a panel on whether the actions taken by a school to identify or address a pupil’s SEN might be considered reasonable and whether a school might reasonably have been expected to intervene earlier in order to prevent the exclusion. We also propose to include an evaluation of the role of SEN expert as part of a study of the relative benefits between independent review panels and the First-tier Tribunal. This will provide us with the views of all parties on the effectiveness of the role of the SEN expert, including parents and pupils. We will consider the findings of this review in deciding whether there is a need to strengthen the regulations or guidance to ensure that the role is being used effectively.
I am sorry to have spoken at some length but these are important issues and I was keen to set out the Government’s response in as much detail as I could because I know that there have been concerns. I hope I have reassured noble Lords that we are taking steps to support schools to identify and address pupils’ special educational needs and we are committed to the effective use of the SEN expert. We believe that the new process, supported by the revised guidance, provides significant additional safeguards for pupils with SEN. I will continue to seek the input of noble Lords and the Special Educational Consortium in finalising the guidance. As I said, I am meeting the noble Lord, Lord Low, tomorrow and I am sure that we shall discuss the matter further then. With that, and looking forward to that conversation, I ask the noble Lord to withdraw the amendment.
Lord Low of Dalston
My Lords, I am very grateful to all those who have spoken, particularly to the Minister for his very full response. It should not have wearied the House as a lot of issues required to be addressed. The Minister has done justice to them in addressing them so comprehensively. In his response he has shown that he has been listening to the debate, as the noble Lord, Lord Touhig, requested. That being the case, it would be churlish not to withdraw the amendment.
The Minister has indicated that quite a lot of what these amendments are asking for will be included in regulations or statutory guidance and that there will be ongoing consultation with noble Lords and the sector about the form of those regulations and the guidance—at least, I take it that that is what there will be ongoing discussion about. The Minister has also shown that he was responsive to the points that were very well made by the noble Baroness, Lady Hughes, about the importance of intervening early. The more we can get that into the guidance, the better. The more we can indicate that the guidance is meant to apply not just to pupils with statements but to other pupils with special educational needs who are at risk of exclusion, the better it will be. However, we can address that issue, along with others, in the ongoing discussions that we will have with the Minister. With that, I beg leave to withdraw the amendment.
Baroness Walmsley
“( ) requiring the responsible body to ensure that the pupil—(i) has an opportunity to make representations in relation to any exclusion under subsection (1) or (2), and(ii) receives relevant information that may be relevant to such representations in language capable of being readily understood by the pupil;”
Baroness Walmsley
My Lords, I rise to move Amendment 16 and to speak to all the other amendments in the group, apart from Amendment 31, because they are also in my name. As we have heard, Clause 4 proposes to change the arrangements for hearing appeals against permanent exclusions from school. Many issues arise in the case of the high proportion of children in this situation who have special needs. Clearly, a driver for this legislation has been those head teachers who have asked the Government to change the system because they have been subjected to what they believe are bad decisions and have lost confidence in it. In such a situation the logical thing is to change a bad system to a better system. Instead, I believe the Government are in danger of changing a bad system into an inferior system.
In Committee, I asked the Government to consider allowing all exclusion appeals to go to the First-tier Tribunal, where provision for children with special needs is appealed. That would mean changing to a system which one of my advisers said is light years better than what we have now, with a qualified solicitor of seven years’ experience in the chair. I hope that my noble friend the Minister will confirm on the record that the Government have agreed to pilot this idea and test it out. I am grateful for that, which is why I have not laid that amendment again but instead have laid this group of amendments which seeks to improve the Government's independent review panels in the mean time. However, I hope that my noble friend will confirm that the pilot will be a proper one and give the First-tier Tribunal the same decision-making powers that appeals panels have now, including to reinstate a child if, in its vast experience, it considers that an injustice has taken place, bearing in mind, as always, the best interests of the other children in the school as well as those of the excluded child.
Another idea has been put to me only in the past few days. I wonder whether the Government might consider whether the magistrates’ courts might have a role which does not suggest that either party has committed a criminal offence. They are used to dealing with young people and they understand how to judge difficult cases, so that is an idea worth considering while we are piloting alternatives.
Amendment 16 requires that a child has an opportunity to make his own representations to the IRP and receives all relevant information to help him to do so. I hope that this will also be allowed in the First-tier Tribunal pilot. It is now becoming good practice for children to be able to represent themselves in all sorts of spheres, according to Article 12 of the UNCRC, including in SEND tribunals. It would make sense for them to be able to do it here too.
Amendment 20 is about the training of panel members, which should be provided by accredited independent providers and cover all relevant issues, as outlined in my amendment. Amendment 30 defines what is meant by independent and accredited providers. Amendment 22 would ensure that the panel understands whether it was being asked to consider a case that should really be before SEND and then be able to refer that case to that First-tier Tribunal instead. Amendment 23 seeks to support the head teacher in a situation where the independent review panel has asked the school to reinstate the child, perhaps because it feels that exclusion was too harsh a punishment for the offence. Under the legislation, of course, we know that it cannot insist. However, in such a situation the head teacher may wish to put a condition on accepting the child back and involve the parents in ensuring the child’s future good behaviour in the interests of the other pupils in the school. That is why I have suggested that a parenting contract or parenting order might be a good idea—something else in the head teacher’s armoury.
Finally, Amendment 32 would provide a last resort for the child and his parent if he believed that the IRP had erred on a point of law. It would allow an appeal to an Upper Tribunal, rather than judicial review. An Upper Tribunal is a judicial body with expertise in this area. SEN cases already go to it and it consists of members of the senior judiciary. They look at a case on the basis of error of law or fact, so moving beyond the process under which the decision was taken, which is all that a judicial review can look at. The Upper Tribunal can look at a panel decision and remake it, or refer it back to the original panel.
Of course, we all hope that, if properly trained, the independent review panels would make sound decisions and that is what this clause seeks to ensure. However, no one is infallible, so this is a failsafe natural justice mechanism which I hope commends itself to my noble friend the Minister. I beg to move.
Baroness Hughes of Stretford
My Lords, I want to briefly speak to Amendment 31 in this group. This is a very simple amendment which would ensure that Clause 4 on exclusions and all that we have been talking about would apply also to academies. As the clause stands, it says:
“Regulations may make provision for this section and for regulations made under this section to apply, with prescribed modifications, in relation to Academies or a description of Academy”.
This amendment simply changes the “may” to “must”, so that the exclusions legislation and the guidance covered in Clause 4 apply equally to all state-funded schools. We cannot see any reason why these provisions, especially with the movement already made by the Government in guidance, should not apply also to academies. Why should the parents of children at academies not have the right to a special needs expert at the review panel? Why should the detailed requirements now in the guidance on the head teacher at the decision-making stage, on the governing body and on the review panel not also apply to the arrangements in academies?
Apart from the point of principle, there is a very practical reason why we need to do this. It is clear that the Government, in clauses we will discuss later—with presumptions that all new schools will be academies, with powers for the Secretary of State to intervene in schools that are in difficulties so that they immediately become academies—intend, as they have made clear, that as many schools as possible, if not all schools, should become academies in the fullness of time. If that is to happen, if we have many more schools becoming academies, I cannot see why we are discussing this legislation. If it does not apply to academies, it raises the question of the point of the guidance—it will become redundant if all schools become academies and this clause does not apply to academies. So we have very practical reasons for making sure, right at the outset, that this applies to all state-funded schools, including academies. I hope that the Minister will accept this amendment and I look forward to his response.
Lord Hill of Oareford
My Lords, let me start by talking about supporting pupils to participate appropriately in the exclusion process. I very much agree that that is important. The guidance on exclusions, which I have circulated, makes clear our view that pupils should be actively supported to participate at all stages of the process. In strengthening this aspect of the guidance we sought the views of the Children’s Rights Alliance for England. In response to its suggestions, the guidance now sets out: first, that head teachers should take steps to allow a pupil to present his case before an exclusion decision is made and take account of significant contributory factors, such as bereavement or bullying, that come to light after an incident of poor behaviour; secondly, that consideration should be given to how to enable and encourage the excluded pupil to participate in governing body reviews and independent review panels; and, thirdly, that independent review panels should be conducted in a non-threatening and non-adversarial manner. I am happy to discuss this draft guidance with my noble friend Lady Walmsley and will consider any suggestions that she may have.
I also agree with her point that schools should be able to agree with a parent clear measures to address poor behaviour when a pupil returns to school following exclusion. She talked about parenting orders and contracts. In fact, schools do have the power to agree a parenting contract or to apply for a parenting order, so I hope she will feel reassured that that is possible as things stand.
The noble Baroness, Lady Jones, raised the question of how the new exclusions process will be applied to academies. I can reassure noble Lords that the requirements will be the same on all state-funded schools, including academies and free schools. We have already updated academy funding agreements to reflect the changes proposed in the Bill, but the Bill also allows us to apply requirements that are placed on maintained schools equally on academies through regulations. I hope that that reassures the noble Baroness. As for training, which is an important issue, if a parent requests an independent review of an exclusion decision it is important that independent review panel members have the capacity to perform their role effectively. As is currently the case, local authorities and academies will be required to provide training to panel members every two years on specific areas set out in regulations. No individual will be permitted to be a panel member without receiving this training, which must cover issues such as the legislative requirements in relation to exclusions; the need for the panel to observe procedural fairness and the rules of natural justice; and the duties of the review panel under the Equality Act 2010.
I understand the point made by my noble friend about the quality of training that some local authorities may provide or commission, but I am not sure that we would want to introduce a requirement for independence which would prevent a local authority which can deliver high-quality training itself from doing so. We want to draw on best practice in training for other bodies that make important administrative decisions. To that end, we are talking to the Ministry of Justice about what more we can do to support this training to ensure that local authorities are clear about the new requirements and are able to develop or commission effective training.
Baroness Walmsley
My Lords, I am most grateful to the Minister for his response. On the issue of the pupil’s voice, I thank him for pointing out what it says in guidance. I will have another look at it to see whether I wish to feed in any suggestions for strengthening it to ensure that that is done. I think that a child should have a right to have his or her voice heard, rather than just have the head teacher encouraged to involve them in the process. It depends how strong the guidance is, when I come to look at it.
I am grateful to him for pointing out that parenting orders can already be used by head teachers and there may also be other measures that a head may wish to use as a condition of accepting a child back when there has been some sort of bad behaviour. I also very much welcome what the noble Lord said about the amendment tabled by the noble Baroness, Lady Jones; that this will be made to cover academies and free schools through regulations. As she rightly said, if all schools became academies this clause would be totally unnecessary. On training, the Minister pointed out that local authorities and academies will have to provide it. In that situation, specifying independent training may not be appropriate. I accept that local authorities may well have the skills in-house and I would not want to press that particular amendment as I have had a good answer to it.
The Minister said that the parent may request an independent review panel instead of a First-tier Tribunal. I think it is more likely to be the other way round; they will ask for a First-tier Tribunal rather than an independent review panel if they can find a way of suggesting that their child has special needs. The decisions of First-tier Tribunals are likely to be better-quality decisions, but I will also leave that point. On the study, I had the impression that it was to be a pilot that would take place in a part of the country where a First-tier Tribunal could hear all the appeals. That is not what the Minister said in his speech, so I need to go away and inwardly digest the significance of that. As I say, that is not what I understood from behind-the-scenes discussions. I may feel the need to come back to that.
On the last resort, the Minister points out that decisions of the IRPs are indeed judicially reviewable, and in some cases the child might have the opportunity of going to the Secretary of State, depending on the sort of school he has been excluded from. I have to say that neither judicial review nor the Secretary of State is very accessible. Having been through the process of judicial review, I was fortunate to have the support of my husband who is a QC, so managed to get through the process successfully. Most parents of children who will be appealing against exclusions do not have the advantage of the support of my noble friend Lord Thomas of Gresford. I therefore do not think that the provision is quite good enough as a last resort. That is another matter that I want to think about but I will not press any of the amendments tonight. I beg leave to withdraw my amendment.
“( ) requiring the responsible body to consider a report about the pupil from the special educational needs co-ordinator when considering whether a pupil should be excluded;”
Baroness Hughes of Stretford
My Lords, I gave notice that if the noble Lord, Lord Low, withdrew his amendment, I would take the opinion of the House on this one, which has the same aim. It would bring forward to an earlier stage in the process a requirement that the governing body seeks the views and assessment of a special needs expert. It is in the interests of children to bring that forward earlier in the process. I beg to move.