Education Bill

Lord Hill of Oareford Excerpts

Thursday 30th June 2011 Grand Committee

[Baroness Massey of Darwen]

My Lords, I follow on briefly from what the noble Lord, Lord Elton, has just said. I have experience of school councils working extremely well. Not only do they discuss the usual problems of boys’ toilets, dining, eating snacks and so on but they discuss discipline issues. I am a governor at a primary school and the youngest children are involved in deciding on the school rules and discipline. As a result, a contract is passed down to each classroom regarding how the children should participate and how they should behave in the school. I am glad that the noble Lord mentioned school councils. I think that school councils should be included somewhere in the Bill in relation to consultation with school pupils. In my experience, that is one of the best ways of consulting pupils in deciding what the school rules should be and how they should be applied.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, before I respond to the points raised in today’s debate, I should like to pick up briefly on the issue that we were discussing when we ended our session on Tuesday, including the points raised by my noble friend Lady Walmsley and other noble Lords about training in relation to searches. In the intervening day and a half, I have reflected on some of those points and I agree that some additional advice to schools would be useful. Therefore, I am happy to commit to recommending to head teachers in guidance that, when they designate a member of staff to undertake searches, they should actively consider whether that member of staff requires any additional training to enable them to carry out their responsibilities. This revised advice will be published in July before the start of the summer holidays.

So far as concerns today’s amendments to and discussion on Clause 2, the main purpose of the clause is to try to give schools as much freedom as possible to respond to their own circumstances and challenges. We know that under the existing legislation head teachers and authorised members of school staff can search for knives and weapons, alcohol, illegal drugs and stolen property. The current situation, as set out by my noble friend Lady Walmsley is that the person conducting the search must be the same sex as the pupil being searched and the search must be witnessed by a member of staff. Where practical, the witness should also be the same sex as the pupil. That is where we are now.

With regard to the provisions in Clause 2, we propose to extend these powers to allow schools to search for any article that they suspect has been or could be used to commit an offence, cause injury or damage property. It will also allow them to search for items banned by the school rules where they have been identified in the rules as an item which may be searched for.

In addition to adding to the range of items which may be searched for, the provisions will make changes to how searches can be conducted, as my noble friend said. They will allow searches to be carried out by a member of staff who is of the opposite sex to the pupil being searched and also searches without a witness. I emphasise that these changes are subject to what we believe to be strict safeguards. Searches can take place only where the searcher reasonably believes that there is a risk that serious harm will be caused to a person if they do not conduct the search immediately. Therefore, these powers could not be used to search for innocuous items banned under the school rules; there must be a risk of serious and imminent harm.

Amendments 25, 13 and 14 relate to searches being conducted under the school rules provisions. Perhaps I may briefly set out our intention behind this provision and the safeguards here that I think will help to guard against it being used inappropriately.

Our intentions in including a specific power which enables teachers to search for, and confiscate, any item identified in the school rules are to enable teachers to deal effectively with items which, although not harmful, can still cause problems in the school.

The current powers to search pupils without consent are already subject to a number of safeguards. Searches can be carried out only by the head teacher or someone authorised by them to search; they can take place on school premises or off the school premises only when the member of staff has lawful control or charge of the pupils; and they can be conducted only if the staff member has a reasonable suspicion that the pupil is in possession of a prohibited item. The pupil cannot be required to remove any clothing, other than outer clothing.

The school rules provisions introduced by this Bill will be subject to additional safeguards. First, an item can be searched for only if it is identified in the school rules as an item that can be searched for; and secondly, the school rules must be determined and publicised by the head teacher in accordance with Section 89 of the Education and Inspections Act 2006 or, in the case of academies, in accordance with regulations that mirror Section 89. That point was raised by the noble Baroness, Lady Jones of Whitchurch. This means that the head teacher must publicise the school behaviour policy, in writing, to staff, parents and pupils at least once a year. Furthermore, the use of force is explicitly excluded from this provision. These specific requirements will help to ensure that teachers, pupils and parents will know which items are subject to searches. The power is, in the Government’s view and in that of the Joint Committee on Human Rights, compatible with convention rights.

I turn to the test of reasonableness and the points raised by my noble friends Lady Walmsley and Lord Elton. I understand the thinking behind the amendment moved by my noble friend Lady Walmsley; she is obviously concerned that schools could include frivolous or unreasonable items in the list of items that can be searched for. While I do not believe, and I do not think that she would believe that in practice governing bodies and heads would be likely to behave in a frivolous way, we think that there are existing safeguards in place which govern how schools set their school rules. That relates to the question posed by my noble friend Lord Elton. These are set out in Sections 88 and 89 of the Education and Inspections Act 2006. Section 88 requires that the governing body of a school must make a written statement of general principles from which the head teacher will draw up the school’s behaviour policy, which includes the school rules. The governing body is required under Section 88 to consult parents and pupils as part of this process. I hope that in some way that will reassure my noble friend. The governing body is also required, when making the written statement of general principles, to have regard to guidance issued by the Secretary of State. There is also a legal requirement on head teachers to have regard to this statement in determining the school rules and to bring the school’s behaviour policy to the attention of staff, pupils and parents at least once a year.

The Government intend to use that guidance, among other things, to explain the nature of the obligations of necessity and legitimate aim under Article 8.2 of the European Convention on Human Rights. As with public authorities generally, the head teacher in drawing up the school rules would have to act reasonably. So I hope overall that my noble friend may accept that there are safeguards in place and that with those safeguards we should feel more reassured that we can trust schools to judge which items they need to search for in the context of their particular school.

I turn to the content of electronic devices and the examination and deletion of what might be on them. Clause 2 would permit the member of staff who seizes an electronic device to examine any data or files on the device, if they think there is good reason to do so. Following such an examination, the person may erase any data or files from the device if they think there is good reason to do so. I think that this point was accepted earlier in the week. There is agreement that the misuse of mobile phones and other electronic devices is a growing problem in our schools. According to Bullying UK, around one in seven young people have been threatened or harassed by mobile phone.

A study by the Association of Teachers and Lecturers published last year in March, suggested that one in seven teachers had been the victim of cyber-bullying by pupils and parents. I was struck that the Association of School and College Leaders welcomed this provision in its evidence to the public evidence session for this Bill in the other place as a way of schools dealing with cyber-bullying without involving the police, which is an important point. We do not want to get to the point where schools have to call the police to deal with matters when they could deal with them with some common sense and in a safe and orderly environment within the school.

I understand the concerns of my noble friend Lady Walmsley that the provisions in the Bill might give members of staff carte blanche to examine or delete the content of a pupil’s mobile phone. But we believe that by requiring the member of staff to have a good reason before doing so, and to have regard to guidance, the clause protects pupils from random searches of their property and provides a robust test which must be passed before a pupil’s personal information on his or her mobile phone can be deleted.

I did, however, listen to what my noble friend said and obviously like her read the comments from the JCHR. In order to address those points, I think we should make more explicit in our guidance that any examination or erasure of data or files must be justified. By this I mean that the guidance should make it clear that the staff member must reasonably suspect that the data or file on the device in question has been, or could be, used to cause harm, to disrupt teaching or break the school rules in some way. I can also commit to the guidance providing advice on the circumstances in which data can be erased and when that can be handed to the police. I hope that that provides my noble friend with some reassurance.

My noble friend also raised the point about the need to respect the private life of the pupil and the pupil’s family, and on the circumstances in which it is appropriate to involve the parents of the pupil. I understand her concern that pupils are protected from any unnecessary intrusion into their private lives. The Secretary of State’s guidance will make it clear that any examination or erasure of data or files must be justified. It will also explain to schools the nature of their obligations under the ECHR and emphasise the importance of respecting a pupil’s personal information and right to privacy.

As my noble friend Lady Walmsley suggested, I would be happy to share with her and other Members of the Committee who would be interested a draft of the Secretary of State’s guidance in advance of Report, so that she can be assured of its helpfulness and we can benefit from their expertise.

I hope that that reassures noble Lords that checks are in place to ensure that these powers could not be used inappropriately. I have committed to include additional safeguards in guidance and to share that guidance as the Bill progresses through this House. On the basis of those reassurances, I hope that my noble friend Lady Walmsley will feel able to withdraw her amendment.

[Lord Lucas]

My Lords, I would be very grateful if my noble friend would include me in that correspondence. I do not yet understand why, under any circumstances, a teacher should be able to delete something from a mobile phone. Surely, the point of finding something is that it then becomes evidence that can be used. In fact, it may be important to show it to the child's parents so that the parents become aware of what is going on. I do not understand the need to delete.

I am also concerned that while one might want and need under some circumstances to explore what is happening on a child's mobile phone, any teacher doing so will discover a lot of stuff that is personal and irrelevant. There is a problem over how that is dealt with. Perhaps it should be done by somebody not involved in teaching the child who can therefore keep separate any knowledge gained from looking at the mobile phone. I agree that there has to be this power in the Bill, but it has to be carefully used.

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[Baroness Morris of Yardley]

My Lords, I support my noble friend. I was not going to speak, but this important point strays into another agenda that is relevant here because we could be doing something that is not great. When I have visited schools, I have seen that mobile phones present a real issue—a huge potential advantage and a current problem. Schools are struggling to know what to do.

Coincidentally, on Tuesday I was in a good secondary school in Cambridge that, to be honest, was not faced with huge behavioural problems. I accept that it was not your average challenged secondary school. Its approach to mobile phones gave a clue as to how important they will be on the information technology agenda. Given that the Government do not have much of an IT agenda, with the abolition of Becta we must look at what schools are doing on that. I hope that in the coming months we might get to the point technologically at which we can as a society support schools in using devices such as mobile phones as an essential part of learning in school and with links to home.

That is not for now and that agenda is not quite here at the moment. I would hate to do anything now that would give a message that would make it difficult for some unconfident schools to move along that road in future years.

[Lord Hill of Oareford]

I shall try to reply briefly to some of those points. I agree with the point made by my noble friend Lord Storey and the noble Baroness, Lady Morris, that one must be careful not to legislate in a blanket fashion that stores up problems for later. I listen in particular to my noble friend Lord Storey because he knows what he is talking about. He has day-to-day direct involvement and we should listen carefully to his reminder of the problems faced by schools. However, I also accept that a lot of technology can be used for good or for ill. That is to do with what people make of it rather than with the nature of the technology.

In answer to the noble Baroness, Lady Hughes, our purpose in a number of these approaches is to give individual schools discretion in what to do, taking their circumstances into account. On the regulations that list the items mentioned by the noble Baroness, we have not laid them before the House because I thought that it was important first to take these issues through the House and Committee and to have this debate. We are not seeking to have a blanket ban on mobile phones, but we want to reach the point at which schools can exercise discretion. More generally, the Government will need to take into account the points that have been raised.

[Baroness Hughes of Stretford]

Although the Government do not want to move towards a blanket ban on mobile phones, is it their current intention, notwithstanding any shift brought about by this debate, that the regulations will allow an individual school to impose a blanket ban on all its pupils?

[Lord Hill of Oareford]

I believe that that could be done at the moment. That would not therefore be a change, and overall we want to give schools discretion.

[Baroness Walmsley]

My Lords, this has been an interesting and illuminating debate. Before dealing with the issues debated today, I thank my noble friend for his comments on our debate on Tuesday. He told us that there will be advice in guidance from the Government to head teachers that they should consider the level of training of the teacher who is designated to be allowed to search. That is all very well, but what happens if they do not do that? What happens if the school designates a teacher who has not had adequate training? What if someone is hurt and the teacher in question is not trained? Would my noble friend like to answer now or would he prefer to come back to me on that?

[Lord Hill of Oareford]

I will come back to my noble friend.

[Baroness Walmsley]

I thank my noble friend. A number of points have been made in the debate today, and I absolutely agree with those who have emphasised how important it is that schools consult parents and pupils when setting their school rules. Indeed, I believe my noble friend Lady Sharp and I were slightly influential in getting that duty to consult pupils into the Education and Inspections Act 2006, if my memory serves me correctly.

It is incredibly important that pupils and their parents understand what the school rules say. It is quite right that the Government do not seek to specify exactly what a school bans and what it will search for if that ban is flouted, but the rules should state why the school is going to ban the items that could be used. The school should ban only the things that could interfere with teaching and learning or that could be used to commit an offence, cause disruption in the school or be otherwise unlawful. Schools should not go over the top and be silly about what a pupil might want to bring in.

As for phones, my noble friend Lord Storey, who the Committee will know is still a practising head teacher, has reminded me that schools already deal with these matters in their own way. Most schools have a mobile phones policy—indeed, many local authorities such as my noble friend’s own authority in Moseley have one—and many schools are sensible enough to allow children to bring in a mobile phone if the parents feel that they would like the child to have it for their own safety or on the way home in case they have a problem with their transport and need to contact the parents. However, they insist that the phone is either handed into the school office during the school day or locked up in a locker. That is quite a sensible approach, as the phone cannot be used to distract lessons or to take photographs of other pupils—one head teacher who supports what the Government are going to do told me recently of a boy even taking photographs of one of the girls in the toilets. We do have to bear in mind that children sometimes do horrendous things. Of course this is not just about phones; DS games can send messages, and most schools would not wish pupils to use those during lessons, and the more affluent pupils might even have an iPad.

I take the point made by the noble Lord, Lord Knight, the other day that these devices can be used for good educational purposes. This is a difficult matter for schools, which is why it is more and more important to specify that these things should be searched for and confiscated and files deleted only if there is reasonable suspicion that they are going to be or have been used to disrupt, to bully or to do something unlawful.

That is why I welcome what my noble friend the Minister has said about sharing draft guidance with us as soon as possible, certainly before Report. I also welcome what he said about the Government wanting to avoid police involvement wherever possible. Of course the criminal justice system must be involved if a very serious offence comes to light, but I certainly believe—and I see many Members around the Committee today who I know agree with me—that we should not get children involved in the criminal justice system unless it is absolutely necessary. Then, of course, we should deal with them properly, but that is another debate altogether.

I have some questions for my noble friend the Minister. If files are erased and the teacher who erases them has reasonable justification for being suspicious, can the child challenge the erasure? If the child loses files of particular sentimental value to them, such as photographs of the family that they do not have on any other electronic device, what is the challenge?

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[Lord Hill of Oareford]

My Lords, I thought that this would be a good and interesting debate and so it has proved. The key issue was raised by the noble Lord, Lord Sutherland of Houndwood; namely, whether legislation should in every respect preclude the possibility of some situation that none of us sitting here can necessarily envisage, although the noble Earl, Lord Listowel, raised one such possibility, or whether we should take the view in approaching legislation that, if we are going to be serious in what we say about trusting professionals, we should provide them with a bit of space to exercise their professional judgment and give them support in doing so. That seems to me to be the argument of principle that lies behind, and has already emerged in, our discussion. The decision that we ultimately reach on these provisions will hinge on it. Are we prepared to allow that small bit of space in emergency situations, or do we take the view that we would prefer to close down that possibility by legislating?

I accept the points made from the outset by my noble friend Lady Walmsley and by a number of other noble Lords. Opposite-sex searches are extremely sensitive—more so at secondary school than at primary school. We have discussed previously the practical issue arising in primary schools from the fact that there are no male teachers in 25 per cent of them. That may have been the relevant age in the instance to which the noble Earl referred. I recognise the sensitivity of searching without a witness. Given that I do so not being a teacher or being in these difficult circumstances, I believe that every teacher or head will understand the sensitivity of the matter even more sharply, because they will know that the consequences to them, professionally and personally, of making the wrong judgment would be disastrous. As a head teacher put it to me the other day, “Any teacher will be very careful about putting themselves in harm’s way”. That is an extremely important point for us to remember. It links to the concerns that the noble Baroness, Lady Jones of Whitchurch, quite rightly raised about putting teachers in danger by giving them such powers.

As we have already discussed previously, these are permissive powers. Under provisions relating to searching powers, head teachers may not require anyone other than school security staff to undertake the search—that will not change—so teachers can draw on this should they feel it necessary for them to do so. There would be very few instances where this situation would ever arise, and, even if it did, an individual teacher may say, “No, thank you. That’s not for me”, and exercise their professional judgment.

I know that I shall have a hard job persuading some noble Lords, but I will attempt to set out why the discretion granted to school and college staff in Clauses 2 and 3 to use their professional judgment, combined with the safeguards which we have included in both, is a sensible way forward.

A number of safeguards already apply to all aspects of the powers to search in Section 550ZA of the Education Act 1996 and Section 85AA of the Further and Higher Education Act 1992. I shall not go through them again, but they are in place. There are additional safeguards, which my noble friend Lady Walmsley referred to, for the new powers. Searches would be permissible only where there was a risk that serious harm might be caused to the person if the search was not conducted as a matter of urgency and if, in the time available, it was not practicable for the search to be carried out by a person of the same sex or in the presence of another member of staff.

The noble Baroness, Lady Massey, raised the point about a parent. The response given by the noble Lord, Lord Sutherland, is the one that I, too, would give: that is, if it is an emergency situation, trying to get a parent there—although, all other things being equal, it would be rather nice—would not be relevant here. However, I understand the thought that lies behind it.

Given that this is an emergency provision and, by their nature, emergencies can arise at any point, and while I hope that schools and colleges will have little cause to use this power, it is important that they should have the flexibility to act in the interests of students and staff where their safety is threatened in the kind of case that the noble Earl, Lord Listowel, mentioned. We expect that the vast majority of searches in future will still be conducted by a member of the same sex and will still be witnessed by another member of staff, as my noble friend Lord Lucas argued. The extension of the provisions is simply intended to give staff the power to act in the interests of the safety of all in emergencies.

In terms of who supports this extension, I take my noble friend’s point that it is clear that some teachers and heads do not want it, but it does have the support of the Association of Colleges, the Sixth Form Colleges’ Forum and the Independent Schools Council. Our broad approach on search has support from the Association of School and College Leaders.

I recognise that there are concerns and that this is not a simple and straightforward case, as the noble Lord, Lord Sutherland, reminded us. We have listened to what the JCHR said. In wanting to help buttress the position of teachers who find themselves in difficult situations and to help protect other children, I recognise that a balance needs to be struck. I think that the Government should take those concerns on board and include in their guidance the specific points raised by the JCHR; namely the expectation that powers to search pupils of the opposite sex or carry out a search without a witness are likely to be used only on rare occasions. Also, the expectation of privacy should increase with the age of the pupil. That point was made by the JCHR and is a matter of sheer common sense. That is the right thing to do and I am happy to give that commitment today.

I know that we will want to discuss these issues further, but as I suggested on Tuesday, the department's expert adviser on behaviour is organising a meeting for noble Lords when I hope we will have a chance to go through some of these issues. I think that the invitation is on its way today and that the date is fixed for next week. I hope that he will be able to share his experiences and that noble Lords will be able to raise their concerns with him.

I hope that the safeguards in the legislation and the fact that we will address in the guidance points raised by the JCHR will, to some extent, reassure noble Lords and that my noble friend may, for now, feel able to withdraw her amendment.

[Baroness Walmsley]

I thank the Minister for his reply and all noble Lords who have taken part in the debate. I will pick up a few points. The noble Lord, Lord Sutherland, suggested that if I had my way there would be no need for training, but I point out to him gently that the current situation requires training. There are currently pretty wide powers for teachers to search pupils for quite a wide range of objects.

The noble Earl, Lord Listowel, raised the scenario of the young child with a piece of glass in his pocket on a school trip. My noble friend Lord Storey may be able to correct me, but on the vast majority of school trips, there is more than one member of staff because the dreaded health and safety rules and the risk assessments that schools have to do these days would ensure that there are at least two members of staff. I do not think that the situation of having to act alone would arise in that scenario.

The Minister mentioned that he did not want us to close down possibilities. But possibilities are closed down by sensible checks and balances under current legislation. He said that these are permissive powers. But I am afraid that when you give people permission to do something, at some time some idiot will go and do it in ridiculous circumstances. Yes of course I accept that 99.999 per cent of teachers would be sensible, but I do not want to open up the possibility by repealing some of our current sensible checks and balances for that 0.001 per cent of teachers to do something silly. The Minister talked about the safeguards that appear in Section 550ZA of some Act of Parliament or other. I ask him whether teachers know about that; I certainly do not. It is important that teachers are very clear about what they can and cannot do, which they will not be if we leave it to those obscure little bits of legislation.

I finish by asking the Minister: have any injuries occurred to any child because a teacher had to send for a witness or a member of staff of another gender? If that situation has not arisen, we should not make these changes to the current legislation. I beg leave to withdraw the amendment.

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[Lord Hill of Oareford]

My Lords, I think that a pattern is beginning to emerge in this last group. For that reason, I shall keep my remarks fairly short.

I am grateful to the noble Lord, Lord Laming, for the way in which he raised and introduced his amendments. I wish him well with the dentist and hope that the exploration that he is about to undergo will not be as painful as the one that I have just been subjected to—and I hope that they will remember to supply him with some anaesthetic. Maybe I will speak to his dentist.

Before responding to the suggestion with which the noble Lord, Lord Laming, concluded his remarks, I wanted to pick up one point that had been raised about whether removing the duty to co-operate may inadvertently send a signal to schools that the Government do not take children’s well-being seriously. I want to put on record the fact that clearly we do, and we have duties on schools to safeguard and promote the welfare of pupils under Sections 157 and 175 of the Education Act 2002. We have retained the important duties on maintained schools to promote the well-being of pupils, which is in Section 21 of the Education Act 2002. As the noble Baroness, Lady Hughes of Stretford, said, there is a duty on the local authority to take reasonable steps to ensure a diverse range of schools are represented on local safeguarding children boards. Obviously, we have no plan to change any of those duties.

There is a debate one can have about statutory duties as opposed to a voluntary approach and whether statutory duties automatically work better than a voluntary approach. I think what everyone who has spoken this afternoon would agree with is that it is the importance of people working together in partnership working across a range of different fronts that is the key here. There is no disagreement between us that that is something that we want to encourage.

I shall not reply at length, but I clearly recognise—as do all noble Lords—the experience that the noble Lord, Lord Laming, brings to this area, as do many other noble Lords who have spoken. It clearly behoves the Government—me—to listen to what he says with great care. I know from having spoken to him before that he understands our concerns about a one-size-fits-all approach and not trying to treat all schools in all situations in exactly the same way. I know that he understands that, but equally I understand the point that he has made. In essence, I clearly need to consider the points that he has made this afternoon. He kindly offered to come in and speak further; I would very much welcome that. As soon as he is able to speak again, perhaps we can do that, certainly before Report stage. I would invite him to do that if he would.

[Lord Laming]

My Lords, I am—I was going to say “most grateful” but that is an understatement—slightly overwhelmed. I am so proud of your Lordships’ House. I read the debate on this that took place in what we call “the other place”. Being at my most judicious in choosing my expression, I shall say that it was a touch disappointing compared with what noble Lords have said here today. The debate here has stood out. I am not surprised but hugely impressed, as ever, with the calibre of the people who have contributed to this debate, with the experience that they bring and with the quality of compassion that they share.

We would all like to impress upon the Minister, who responded in a characteristically thoughtful and generous way, that none of us wants to defend duties that are there purely to serve bureaucratic ends. Frankly, too many such duties simply serve bureaucratic ends. I would support the Government if they said that with every duty you had to demonstrate the value that it brought to, in this case, children and young people. We should ask what impact it has. Does it enrich their lives and their life opportunities? If it does not, it is simply serving the machine. Therefore, if the Government wish to remove bureaucratic duties, I assure the Minister that he will have my complete support. There is a huge difference between that and trying to remove these duties, which, as all noble Lords have said, are about co-operation. They are not just about safeguarding but about promoting the welfare and proper development of every child. Today, we have heard many examples of children in different circumstances. However, time is going on, so I shall not mention them.

I am immensely grateful to all noble Lords who have spoken in the debate. I absolutely understand the Minister’s position. I know that by working together—an example that we should set to everyone else—we can do something that will achieve the end that we all wish to see. I shall not delay the Committee further, as I know that noble Lords have a long agenda. I shall follow the good example set by the Minister and just say that, on the basis of the assurances given by the Minister, I beg leave to withdraw the amendment.

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[The Earl of Listowel]

My Lords, I apologise for being absent for much of this debate. I have an amendment in this grouping, Amendment 52A, and I would like to speak to it briefly if I may. It states:

“A review panel may, following a review under this section, direct the Office for Standards in Education, Children’s Services and Skills to undertake an inspection of the school concerned”.

I hope that the amendment has not been degrouped from this grouping of amendments.

The Minister was kind enough to write to me with some information about the review of Ofsted. I understand that it is looking for new triggers for inspections and I tabled the amendment in order to probe the Minister on whether this might be one way of doing so. It may not be to direct but to encourage Ofsted to inspect a school that has excluded a child. Having spoken recently with a head teacher who sat on a panel dealing with young people who had been excluded, it seems to me that a small number of children are put back into the system and that it is a necessary check. The Minister knows how much sympathy I have for his push to give more autonomy to schools and the professionals working in them.

[Lord Hill of Oareford]

My Lords, exclusion should be the last resort, a statement with which everyone here wholeheartedly agrees. There was agreement on that when we discussed it on Tuesday and it was a message that I received clearly from the All-Party Parliamentary Group on Children, which I was lucky enough to meet last week, and it has been reiterated again today.

Therefore, in responding to this group of amendments, I want to start backwards with Amendment 54 spoken to by the noble Baroness, Lady Hughes, and the case for trialling a new approach to exclusions. In our White Paper, published last year, we set out our plans for such a trial. It is worth rehearsing our objectives because this goes so much to the heart of what we have discussed today on exclusions. They are to encourage early intervention; to address behavioural problems and their causes; to keep pupils in their schools wherever possible; and, if it is not possible, to ensure that they receive high-quality education elsewhere. It is worth restating that because it comes down to a point that we debated previously—that the way in which legislation is drafted means that one often starts the discussion back to front. I want to emphasise clearly that our objective, which I know is shared by everyone here, is that exclusions should be absolutely the last resort and the drive of government policy going forward will be to try to find ways of avoiding it.

We know that some areas have already made a lot of progress in this area of the kind referred to by the noble Baroness. Cambridgeshire has devolved responsibility for all its alternative provision to clusters of schools, and they are given a share of the local authority’s budget to spend and are allowed to keep the savings. It has seen a reduction of about two-thirds in the number of pupils referred to PRUs by secondary schools. At the all-party group meeting last week, we heard also about Devon. There is clearly good practice out there from which we are keen to learn.

In the trial areas, a school that excludes a pupil will then have to find and fund an alternative full-time placement. That relates to the point made by the noble Baroness, Lady Warnock. Knowledge of the pupil’s needs and history should assist in finding the most appropriate provision. Some of the funding currently retained by local authorities for alternative provision would be delegated to schools for this purpose. That is the idea of the trials. More than 50 local authorities have expressed an interest in taking part in the trial and we are finalising plans for it to start this autumn, involving between 15 and 18 local authorities. Officials are discussing the final details with those schools, and we hope and believe that this large trial will enable us to identify and work through all the issues, find solutions and modify our approach should that prove necessary.

Amendment 54 seeks to legislate now for that approach. I am sure that its purpose is to provide an opportunity for this debate. However, our view is that we need first to have discussions with head teachers and other people with know-how in this area and that we should not rush into legislation on this matter. We hope that the trials will start in the autumn and run for two or three years. We do not need legislation for the trials, but having learnt from them we will then legislate if we need to. That is something that my honourable friend Sarah Teather is running with.

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[Baroness Hughes of Stretford]

Will the Minister make it clear in the guidance that, if the assessments are done at an early stage as he envisages, they will be made available and the governing body considering a permanent exclusion—and then the review panel at the point of review—will be required to see the assessments that will have recently been done?

[Lord Hill of Oareford]

In that case, we would expect the panel to ask for such an assessment if it has been made.

We then turn to the amendments that require an automatic trigger to initiate an assessment when a child has been given a certain number of fixed-period exclusions. Whereas I hope that I have set out our thinking on the importance of good early assessment, we are reluctant to set in legislation such an automatic link, tying assessment to a set number of fixed-period exclusions. The approach that we have set out in the Green Paper can achieve the same objective, and multiagency assessments should take account of all special educational needs, including attention deficit hyperactivity disorder, which was the point raised by the noble Lord, Lord Ramsbotham, who is no longer in his place. I will follow up with him his specific points.

We then considered amendments that require certain conditions regarding special educational needs to be met before a pupil could be permanently excluded. For example, the governing body would have to consider a report from the special educational needs co-ordinator, the SENCO, before excluding a child; or a school could not exclude a child with special educational needs without showing that it had made attempts to address those needs.

Governing bodies must take account of relevant information pertaining to the child when considering exclusion. They already have a duty to secure as far as they can that special educational provision is made for those pupils with special education needs, and I will be happy to ensure that future versions of guidance make it explicit that they should take account of information relating to the child’s special educational needs, if any, in this situation. That is currently implicit in the guidance, but in view of the proportion of excluded pupils who have special educational needs, I accept that we should make a more explicit reference in future guidance.

I would hesitate to be so prescriptive as to say that there must be a report from the school’s special educational needs co-ordinator. In many cases, I agree that the SENCO may well be the appropriate source of information, but I would rather limit guidance to the principle that the governing body should take account of information that relates to the child’s special educational needs but allow it some flexibility on the question of from whom that advice should come.

With regard to whether a school should be able to exclude a pupil without demonstrating the attempts that it had made to meet his or her needs, I hope that what I have said will have demonstrated to noble Lords that we are committed to ensuring that children’s needs are assessed early. We would wish governing bodies to consider what their school had done to assist the child, and that should be a factor in their decision.

However, to say that a school could never exclude a child if it had done too little to meet his or her needs would be a step too far. To take an extreme case, if a child whose needs had not been suitably addressed was guilty of a serious assault on another child or a member of staff, exclusion may well be the most appropriate action for the sake of other pupils and staff. We would then want action taken to address that child’s needs so that they could better participate in education, but that would be after the exclusion rather than instead of it.

In terms of the part played by the special educational needs expert in the review panel process, noble Lords will know that we made a commitment in the other place to include provision in the regulations to give parents the right to ask for a special educational needs expert to attend the panel. It will be for the parents to determine whether they believe the SEN expert is required, irrespective of whether the school or local authority has identified any special needs. Given that, I am not convinced that there is a pressing need to include a reference to this in the Bill.

We will ensure that parents are made aware of their right to ask for the presence of such an expert. After the passage of the Bill, we will consult on regulations and guidance, and I have asked officials to consult local authorities, schools, parents’ representatives and others on how we can best ensure that parents are made aware of their rights.

I move on to Amendment 43, spoken to by my noble friend Lady Walmsley. The principle that the pupil’s views should be heard during the exclusions process is very much one that I support. More generally, the Government are committed to ensuring that children and young people’s views are listened to and respected. I can confirm that we will work with children’s organisations to revise the current statutory guidance to set out clearly the legal obligations that apply to schools in relation to consultation with pupils.

Through guidance, we have encouraged the involvement, where appropriate, of pupils at all stages of the exclusions process—subject to their age and understanding. This begins at the start of the process. The guidance says that before excluding a pupil, the head teacher should inform him of the reasons for the intended exclusion, the length of the exclusion, if for a fixed period, and give the pupil a chance to have his say.

The section of the guidance that covers appeal panels states that pupils under 18 should be encouraged to attend hearings and speak on their own behalf if they wish to do so, subject to them being able to understand the process. We will need to revise the guidance in the light of the changes to panels proposed in this Bill. I can reassure noble Lords that we will keep similar messages in the revised guidance. I hope that the noble Lord will agree that this guidance does not merely pay lip service to young people’s participation but actively encourages it. This guidance was prepared under the previous Government, but that principle is one that we support.

It is important that a pupil should have the right to his or her say in this way, and we want schools and review panels to listen to them. However, that is rather different from making more formal representations, and we believe that parents should have that more formal role. However, we do not want to rule out further changes in future. We have taken note of the views of those who want to extend children’s rights in this area, and we are willing to consider how such arrangements could work. Noble Lords may have seen in the SEN and disability Green Paper that we are planning to run pilots where children will have a right of appeal to the first-tier tribunal for all tribunal hearings. I ought to make clear the distinction between the trials of the new approach to exclusions and these pilots, which focus not on exclusions but on how young people could appeal directly to the first-tier tribunal on all the issues for which the tribunal is responsible.

The pilots will test in a couple of areas of the country whether this approach can work. They cannot begin until we have modified primary legislation, which would not be until 2012 to 2013 at the earliest. But we will use those trials, assuming that we get the legislative go-ahead, to inform our future policies in these areas.

The noble Earl, Lord Listowel, mentioned an important point about Ofsted. I support the principle behind this amendment that a review panel should be ready to highlight concerns and bring them to the attention of Ofsted or other relevant bodies, but I would not go as far as directing Ofsted to inspect the school. But a review panel would be able to write to Ofsted, or to the Secretary of State, expressing its concerns, and suggesting that an inspection might be useful. I believe that an independent appeal panel could do that now, although I do not know if it has ever happened. I think it would be useful for us to refer to that possibility in guidance so that review panels consider the option of making a reference to Ofsted. I am therefore grateful to the noble Earl, Lord Listowel, for raising the issue.

Before I finish I would like briefly to speak to government Amendment 60, which is in my name. It replaces the wording of “exclusion appeal panel” with “exclusion review panel” in Section 31A of the Local Government Act 1974. This is a consequential amendment and should have been included in Schedule 1, but was overlooked when the Bill was drafted, for which I apologise.

We have had a broad set of amendments and debate. I hope that I have been able to provide some reassurance generally about our approach and some specific further reassurance, as well as some more information. In the light of that, I hope that the noble Baroness will feel able to withdraw her amendment.

[Lord Ouseley]

I make a small intervention on behalf of the noble Baroness, Lady Howells. The Minister has not responded to the point that she made on the issue of race and ethnicity. If the noble Lord, Lord Ramsbotham, was here now he might be able to confirm the issue to which he referred—the high percentage of 72 per cent of SENs in prison. There is also clear disproportionality associated with that, within the context of colour discrimination, as it affects black young boys in exclusions and in custody, black young boys experiencing stop and search, as well as black young boys’ DNA being on data registers. Those are all contributory factors that lead back into issues of behaviour in schools, which we have to address.

We cannot have a debate and a consideration of these provisions and the subsequent ones without recognising the issue of colour discrimination. It would be helpful if the Minister could say before he concludes what efforts he will make to have discussions with the noble Baroness, Lady Howells, and others, about the arrangements to put together guidance and the provisions dealing with assessments before exclusion, which would be helpful to reduce the disproportionality that exists.

[Baroness Benjamin]

My Lords, I, too, support what the noble Baroness, Lady Howells, has said. I feel very sad that three people of culturally diverse backgrounds have had to bring up this point. I should like the Minister to respond to her and for others to be part of this conversation.

[Lord Hill of Oareford]

Forgive me, my Lords. I meant no discourtesy to the noble Baroness, Lady Howells, and I hope she will understand that. I meant no discourtesy to any noble Lord in my reply. I am grateful to noble Lords for having raised the point and for reminding me that I did not do so. I was responding to the specific points relating to SEN. I obviously accept the point that the noble Lord made about exclusions and disproportionality, and the statistics speak very powerfully. That is precisely the sort of issue that the exclusion trials ought to take into account. Regarding where we have got to on the trials, my understanding is that we want to look at a range of issues concerning exclusions in different parts of the country and in different settings. It would be absolutely right to do that. If it would be helpful, clearly I would be more than happy to speak to the noble Baroness and to bring together some officials who can explain where we are with the trials. We could have a conversation to make sure that these important points are picked up.

--- Later in debate ---

Amendments 35 and 36 not moved.

[Lord Hill of Oareford]

My Lords, this may be a convenient moment for the Committee to adjourn until Monday at 3.30 pm.

Committee adjourned at 6.07 pm.