Education Bill

Lord Knight of Weymouth Excerpts

Monday 4th July 2011 Grand Committee

The noble Baroness, Lady Walmsley, has explored at some length, so I shall not repeat here, the views of the Joint Committee on Human Rights and the Administrative Justice and Tribunals Council. However, they have both concluded that these measures are contrary to the ECHR, as she said, and that the analysis underpinning the Government’s argument in relation to the noble Baroness’s point about contending that the majority of cases involve violence is fundamentally flawed. The AJTC said that the majority of appeals succeeded because the panel did not accept that the pupil had done what he or she was said to have done or the decision to exclude was not proportionate. Therefore, it is very clearly and firmly of the conclusion that taking away the power to reinstate is wrong and that it is not a fair process, even in the very tiny number of circumstances in which it is applied. Does the Minister accept those conclusions of the cross-party report and will he rethink the proposal to remove the possibility of reinstatement?

[Lord Knight of Weymouth]

My noble friend is making an important case, as did the noble Baroness, Lady Walmsley. Later, we will talk about behaviour and attendance partnerships. Does my noble friend think that the notions of fairness that have been discussed would shift if schools had to remain within behaviour and attendance partnerships and therefore had to make sure that excluded pupils were properly found a place within that community of schools?

[Baroness Hughes of Stretford]

My noble friend makes an extremely important point, which I was also going to try to make but he has made it very well. This is one of the problems with the way that the Bill has been constructed, tearing down, as it does—in my view, somewhat recklessly—a whole range of requirements and apparatus. When you look, as we will shortly, at the proposal to repeal the responsibility of schools to be in a behaviour and attendance partnership, and set that alongside the measures before us, you see that the situation is compounded. At least if schools were in such a partnership, they would have a responsibility to work with schools in their federation or partnership to find solutions for those difficult children whom some schools propose to exclude. Taking both away makes things very difficult. One cannot see what will happen to children when they are excluded through this process.

If the Minister is not minded to reconsider, will he explain to the Committee what safeguards the Government would put in place to assure the groups whom we have been discussing who are already adversely affected by permanent exclusion and would be more so through these measures? What safeguards do they propose to put in place, not just to contain but to reverse that trend?

Many organisations in addition to those mentioned by the noble Baroness, Lady Walmsley, have expressed their concern about these proposals. The Children’s Society, the National Children’s Bureau and the Children’s Commissioner have asked the Government to think again. Some trade unions have raised a slightly different but equally important point, arguing that rather than reducing bureaucracy there is a danger that, unless either the amendment that I am speaking to or that proposed by the noble Baroness, Lady Walmsley, is enacted, removing the panels and taking away the power to reinstate may lead parents to think about taking legal action against schools. That would involve a great deal more work and unnecessary bureaucracy for schools.

The amendments proposed by the noble Baroness, Lady Walmsley, would mean that all parents of permanently excluded children would be able instead to appeal to the first-level tribunal. That has much to commend it. Those tribunals, unlike the review panels, would be led by somebody who was legally trained, which is a big advantage. One could ask, as did the noble Baroness, what the consequences would be in terms of time, delay and expense of all the cases going to such a tribunal. Might there not be an argument for a remedy at a more local level for at least some of those cases? I am open to debate on that point; the main thing, as we have both said, is that there should be somewhere in the system a right of appeal to a body that has the power to reinstate.

Sir Alan Steer recommended in his independent review, Learning Behaviour:

“Independent exclusion appeals panels should be retained, both in the interests of natural justice and to prevent schools becoming embroiled in time-consuming or costly alternative legal processes”.

I have mentioned the Runnymede Trust, which has provided a number of case studies, one of which is particularly salutary. It is the case of the Formula 1 champion, Lewis Hamilton, who when he was 16 was excluded from school in a case of mistaken identity after he witnessed an attack. In his autobiography, he writes:

“I knew I was innocent but”,

the head teacher,

“did not appear to be interested. Subsequent letters to the local education authority, our local MP, the education secretary and even the prime minister, were of no help. No one appeared to listen—no one either wanted to or had the time. We were on our own, and I was out of school”.

However, Hamilton’s school career was saved due a successful case made by his father to an independent appeal panel, which reinstated him at the school.

While there is a chance of even a small number of cases such as that occurring, and given the arguments that we have all made about natural justice and fair process, it would be wrong to remove the power to reinstate. The noble Baroness, Lady Warnock, asked at our previous sitting what would then happen if that decision was taken. Yes, we can have a conversation about where that child goes. However, to have won your appeal puts you in a very different position from being excluded and there being no power to reinstate.

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[Baroness Morris of Yardley]

The noble Lord is right. As a not so infallible Minister, I remember the legislation because there was a fear that local authorities would make life difficult for head teachers. If my memory serves me right—and I am absolutely sure that it does on this—there was a requirement in previous legislation to make sure that someone with educational experience was on the appeals panel. Previous legislation has done the mending that needed to be done in terms of the appeals panel. People who have served as Members of Parliament may also know that there has always been a feeling among parents and students that appeals panels lean over backwards to support the schools. If there is a feeling in society, it is not that the appeals panel leans over backwards to exclude the child; it is the other way about. As the noble Lord said, many people on the panels have educational experience and want to support heads. Therefore, the people on the appeals panel are not anti-heads, anti-discipline, anti-order, anti-fairness or anti-justice; they are people who know about education and they try to do a difficult job.

[Lord Knight of Weymouth]

When the noble Baroness talks about heads, I wonder what her thoughts are on the pupil premium that has been introduced by the Government. Interestingly, it motivates heads to admit pupils from poorer backgrounds; and we know that, because of the chaotic backgrounds that some children from poorer backgrounds might have, behaviour might then be an issue to some extent. Does she think that there might be a danger of selection by exclusion, whereby heads take in children to get more money and then, whether deliberately, up front or otherwise, exclude those who are more difficult and damage the education of others?

[Baroness Morris of Yardley]

My thoughts had not gone that far, but my noble friend puts forward a very interesting proposition. I think that perhaps why he thinks that—and why he is right—is because some heads have always sought to manage their admissions through some element of exclusion. There are times when that is right. Some heads, in their first year of taking over a school that has been in very challenging circumstances, have excluded to lay down rules and regulations and to make sure that they can set standards. I understand that, but what the noble Lord suggests would be a terrible thing—and I hope, having put that on record, the Minister will bear it in mind.

I will finish there, because I wanted only to make that brief point. Either assumption is wrong, whether it is about the infallibility of heads or whether it is that when they make a mistake we pretend they have not made a mistake. Worse than that, this is not only unjust and unfair but will do nothing to improve discipline, because the kids and the school community will know that a child was excluded, that the appeal found for them and that the child has not been reinstated. That will do nothing to encourage the school community to support the head. Kids are really good about fairness, and so are parents. The legislation as it has been put to us will not help in that regard.

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[Lord Lingfield]

My Lords, I am sure that the Minister will confirm that this did not rise just out of a vacuum and that a large number of teachers and teachers’ organisations have indeed been in contact to support this piece of legislation. It is hugely important that where punishment is going to happen in schools it happens quickly in order to be effective. This legislation will not actually place a duty on schools to do this but simply provide a power to do it. Some schools could decide in their wisdom that they want nothing to do with having detentions under these circumstances. Others could decide that only certain members of staff under considerably constrained conditions may do so. Therefore, we can expect a variety of responses among schools in order to do this. However, there is absolutely no doubt that this power is needed by schools—or at least by some schools. It is part of a series of new tools for the toolbox that I am sure the Minister will agree he is trying to provide, and sends a message to teachers, pupils and parents that a lot of the misbehaviour that we have heard so much about is being combated. It is not one thing—there are other things, all of which are hugely important. They send a clear message to those people that they are going to be supported by government under these circumstances, and that teachers will not have to put up with the kind of misbehaviour that we have heard quite a lot about.

According to the thrust of the Government’s position, these decisions should be left to individual schools. We trust individual schools to make these kinds of decisions. Frankly, it is good so to trust them. Given that kind of trust, the response is always more professionalism. We do not need any more safeguards built into this. Where things are, there they should stay.

[Lord Knight of Weymouth]

My Lords, I will briefly make three points, unless something else occurs to me as I am on my feet. First, will the Minister tell us how many schools have actually asked for this? I have listened carefully to what the last noble Lord said, but in my three years as Schools Minister no school ever asked me for this power. I would be really interested in what evidence there is for a demand for it.

Secondly, I listened to what the noble Lord said about the fact they we should trust schools and leave it to them to decide whether to use the flexibility that they are being given in this Bill. I refer back to what the noble Baroness, Lady Jones, said about schools not necessarily fully understanding the circumstances of some of their pupils’ families; her example was whether or not they have caring responsibilities. I was shocked to talk to some schools where they did not know that parents might be in prison. All sorts of things happen that families do not necessarily want to go around talking about but which affect the nature of the home environment, and would then affect whether it would be appropriate to give a detention without notice on the same day after school.

Finally, on reinforcing the discipline from the school at home, when I was given detentions at the prep and independent private schools that I went to for things like forgetting my towel or—God forbid—being cheeky and a bit mouthy, which I know would shock noble Lords, there was always a letter home that went with the detention. That was always the worst part of the punishment: your parents knew that you had been given a detention. Giving 24 hours’ notice so that your parents are informed of the detention is a really important aspect of linking up the discipline of the school with home. We know that the single most important determinant of the success of a child’s education is the involvement of their parents in that education. I strongly believe that it is really important that we ensure that that linkage through the notice is there in every school.

[Baroness Howarth of Breckland]

My Lords, I wish to follow the noble Lord, Lord Knight, because I found it extraordinarily surprising that this Government, who stand very much for working with and alongside parents and making sure that there is accountability and responsibility at home, can suggest that they would give a detention without informing parents. Having worked with the Minister, Tim Loughton, on other issues and knowing how important it is for the Government that children should be safeguarded, I find it astounding that they can suggest that children can be detained in the evening and be allowed to go home without their parents knowing and without safeguards. I expect better.

Detention is not always about discipline. I got my detention for leaving my French homework on the bus and not producing it.

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[Baroness Garden of Frognal]

My Lords, as we have all agreed, improving standards of behaviour in our schools is of great importance. We know that having a clear behaviour policy, which is consistently applied and includes positive incentives as well as sanctions, is essential to ensure good behaviour. This clause is one measure that the Government are taking to help schools to achieve this. Its intention is to allow teachers and head teachers to use detention in a way that is appropriate to the circumstances of their school and individual pupils to maintain a safe and orderly school environment.

My noble friends Lady Brinton and Lady Benjamin and other noble Lords have raised concerns about the safeguards, but safeguards are already in place to make sure that parents know what to expect with regard to detention outside school hours. Section 89 of the Education and Inspections Act 2006 requires that head teachers develop a behaviour policy in line with the principles drawn up by the governing body, and publicise it to parents annually. This policy must include all the penalties that the school uses to maintain discipline, including whether the school issues detention outside school hours.

The amendments in this group seek to place additional requirements on schools in relation to contacting parents when they wish to give a detention. I understand the intention behind the amendments. My noble friend and the noble Baroness, Lady Jones, rightly consider that courtesy to parents and issues of child safety are of the utmost importance. Of course, I agree with them about that. However, noble Lords asked where these requests had come from. They may have read the briefing by the Association of School and College Leaders, which read:

“We welcome removal of the requirement to give parents 24 hours notice of detentions. We note that at second reading there was concern that this power could be abused. School leaders are well aware of the position of child carers, as well as other concerns such as children walking home alone in the dark and in the vast majority of cases will continue to give 24 hours’ notice. We are confident that schools can and should be trusted with this additional discretion”.

We have had meetings with school heads who support that to the hilt.

I believe that teachers and head teachers will consider the circumstances of their schools and pupils in setting their policies on detention so that they can promote good discipline but also safeguard children’s welfare and support good relationships with parents. However, I shall also set out the existing legal safeguards that protect children’s welfare if they are given a detention. Section 91 of the Education and Inspections Act 2006 requires that disciplinary penalties must be reasonable in all circumstances. When considering whether a disciplinary penalty is reasonable, teachers must take account of the special circumstances of the pupil, including—but not limited to—their age and special educational needs, or any disability they may have. That would include the concerns raised by the noble Baroness, Lady Jones, about autistic children and their very special needs.

The Section 91 requirement applies when issuing detention outside school hours. This means that a detention will be lawful only if a teacher acts reasonably given the circumstances, including in relation to giving notice to parents. My noble friend Lord Lingfield raised the fact that this is a power, not a duty, that schools will have.

[Lord Knight of Weymouth]

Do those legal safeguards mean that the noble Baroness’s expectation is that parents’ recourse would be to the courts—and the expense of going to court—if, for whatever reason, they did not feel that they had been given notice that their child would not be at the school gates to be picked up and that had caused them to worry? Is there another third party to whom they could appeal?

[Baroness Garden of Frognal]

The noble Lord raises a valid point. There will be a school complaints procedure to which parents can normally turn in the first instance. Given the special circumstances in which this might arise, one would have thought that that would be the first line of action.

I also understand noble Lords’ concerns regarding the safety of children when travelling home from school, particularly in rural areas. I should reassure noble Lords that, in addition to the safeguards I have just described, Section 92(5) of the Education and Inspections Act 2006 makes it clear that, when considering an out-of-hours detention, teachers must consider whether suitable travel arrangements can be made via pupils’ parents. For some rural schools, out-of-hours detentions may never be appropriate, whatever the notice period, as has already been raised in discussion. I believe that head teachers will make sensible decisions in their individual circumstances.

In our debate on Tuesday, the noble Lord, Lord Sutherland, described some of the difficulties that schools can face in working with a minority of parents. There is a risk that requiring parents to give consent for a same-day detention or to confirm that they are aware of it could, in a small number of cases, allow parents to obstruct appropriate disciplinary penalties. I should reassure noble Lords that the department has released new concise guidance on teachers’ legal powers to discipline. This guidance makes it clear that the school must act reasonably when imposing a detention, as with any disciplinary penalty. In addition, when deciding the timing, the teacher should consider whether suitable travel arrangements can be made by the parent for the pupil. I believe we can trust teachers to consider this and act appropriately.

In reply to the noble Lord, Lord Knight of Weymouth, a study carried out for the Department for Education found that teachers reported a lack of support from parents, describing a “them versus us” mentality. That same study found that teachers felt that the removal of the requirement for 24 hours’ notice of detention would empower them. I can send the noble Lord and the noble Baroness, Lady Howarth, a copy of that study. We stress that the vast majority of parents would be likely to be supportive if they could see that the detention was in the interests of their children. However, this measure is to take account of cases where that might not be seen as an appropriate action.

[Lord Knight of Weymouth]

Is it not the case that the amendment asks for parents to be given notice? It does not require consent. I completely understand that there may be problems over consent if the relationship between home and school is not great. The important thing is that parents know that their child will not get off the bus.

[Baroness Garden of Frognal]

Parents do not necessarily answer their phone. The fact that one has sent a letter home with the child does not necessarily mean that the child has passed it on—I can remember that being the case when I was a teacher. In some cases it was difficult to get hold of the parents to ensure that the message had been sent through. I come back to the point that, were there a difficulty at home, teachers and head teachers would be aware that it might not be an appropriate action to take. It would be taken only where it was deemed to be the right thing to do.

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[Baroness Jolly]

My Lords, I am happy to support noble Lords’ Amendment 64 and the thrust of Amendment 64A in the names of the noble Baronesses, Lady Hughes and Lady Jones. At Second Reading, I went on record to defend the GTC for England. On these Benches, we support the removal of quangos that are unnecessary or whose functions are retained elsewhere. However, that clearly will not happen in this case. We will be left with little more than a list of teachers who are no longer fit to practise. There will be no remnant of a professional registration body.

It is said that a society is measured by how it cares for the vulnerable—the elderly, the disabled, those who are ill and children. A teacher has the future of a child in his or her hands. Nurses, doctors, lawyers and social workers have registration bodies that act independently of the Government. Only last week, I heard of plans by the Nursing and Midwifery Council to include the registration of healthcare workers. What is therefore special about teachers in England that this is denied to them? The elegant Amendment 64 calls for the members of the profession to reject the Government’s proposals, should a majority of them so wish, thus maintaining the status quo. Amendment 64A outlines a professional registration body as it should be through proposed new paragraphs (a) to (e), and it is a proposal of which teachers could be proud.

Consequently, on these Benches we support the intention of Amendments 64 and 64A. The noble Lord, Lord Lingfield, made the point that the GTCE had not worked so far. That is absolutely no reason to dismantle completely something that should exist. It is incumbent on us to leave it there and try again.

[Lord Knight of Weymouth]

My Lords, I shall be relatively brief; I suspect we shall want to adjourn fairly soon. I was pleased to put my name to the amendment in the name of my noble friend Lord Puttnam, not just because there is a reasonable presumption that you should always agree with one of the people who proposed you at your introduction but because he is, as ever, right. As we have heard, the amendment suggests that teachers themselves should vote on whether the GTCE should continue. I looked up what the Secretary of State, Michael Gove, said on 2 June last year, when he announced the scrapping of the GTCE. Incidentally, I understand that the people working there, including the chief executive, were at the time as surprised about it as everybody else. Michael Gove said that the Government trust the professionals. This amendment trusts teachers to decide whether they want their professional body to continue.

The other half of the amendment uses the proper threshold. This should appeal to the Government, given that on 26 June, on the “Andrew Marr Show”, the Secretary of State Mr Gove confirmed that Ministers are looking at minimum thresholds in the context of strike ballots. In respect of such a ballot, which I am assuming that the Minister will say he supports, because it is so much in the spirit of where this Government are going, I would argue for the retention of the GTC, but with reform as necessary. Why the GTC? Because, in the end, professionalism is important. Again, I looked up the words of the Secretary of State in November last year in his forward to the White Paper. He said:

“At the heart of our plan is a vision of the teacher as our society’s most valuable asset”.

He went on to say:

“There is no calling more noble, no profession more vital and no service more important than teaching”.

Who could disagree with his words?

The Secretary of State’s actions cause me a little more concern. Given his commitment, if he so believes in them and their professionalism, it is a surprise that teachers have voted overwhelmingly that they have no confidence in this Secretary of State. Perhaps that is because of the reality of his attacks on that professionalism. Look at what he is doing to the pension scheme. When the noble Lord, Lord Adonis, was in his place, he renegotiated the teachers’ pension scheme and made it effective and funded. They see that attack. They see anyone being allowed to teach in free schools, and they see a mum’s army being asked to come in and teach during the strike. If he was Health Secretary, would he have had said the same about nurses, and that mums should go and replace nurses in hospital if there was a nurses’ strike? If he was the Secretary of State for Communities and Local Government, would he ask them to do the same if there was a firefighters’ strike? I suspect not. I suspect that he would respect their professionalism more than he respects teachers.

Then he wants them arbitrarily to close their professional body. As others have said, would he have closed the General Medical Council if he was Health Secretary? No he would not. He would respect their professionalism and their professional body. The other shocking consequence of the abolition of the General Teaching Council is that the teaching agency will take on only the disciplinary functions of the GTC, as we heard in a speech of my noble friend Lady Jones. Can he confirm this? Does this seriously mean that there will no longer be a register of teachers? If so, this is an extraordinarily reckless move by the Government. I assume that the logic is that it is now up to schools to decide whether anyone can teach and what they are paid, and it is all part of this wonderful freedom that we are now going to give head teachers. Hence the assumption is that everyone is eligible to teach unless they fail a CRB check. I find it incomprehensible as to how that will work—and not just in relation to the relationship with Northern Ireland, Wales and Scotland and making sure that people can move freely, as was pointed out by the noble Baroness, Lady Jones. I just do not understand how the teaching agency will exercise its disciplinary functions without a register or how this move will improve teaching standards. I see it only lowering teaching standards. There are opportunities to use a register to raise standards. You could introduce a right to continuous professional development to teachers and, in return, they would have to re-register, so that we could ensure that they continued to receive training and raise their professional standards.

Finally, I repeat the point that this is part of the power grab by the Secretary of State. He will be directly responsible for recruiting, training and disciplining teachers as a result of this Bill. That is a massive change. It makes him very vulnerable to problems, when problems occur, as they inevitably will. But that is his problem.

These are just some of the arguments and reasons why I would reform the GTC to distil its statutory functions down to those coincidentally in Amendment 64A, proposed by the noble Baroness, Lady Jones. We could also think about the composition of the council and how it can be reformed better to represent the customer rather than the producer of education. With reform, I think the GTC can be an effective organisation, but I am happy to be hands-off about this and to leave it to teachers—hence my support for the amendment. If teachers do not want their professional body, they should be trusted to get rid of it.

[Lord Willis of Knaresborough]

I rise partly to apologise to the noble Lord, Lord Lingfield, for calling him Lord Lucas earlier. I am sorry for that. I blame my Front Bench for giving me the wrong information. I do not want like the noble Lord, Lord Puttnam, to go back to the Middle Ages and end up at 1858 with the General Medical Council or indeed to revisit Nicholas Nickleby and the Dickens novels. I would like to start in 1963 when I became a teacher. It was the proudest day of my life when I got my first teaching post and went into a secondary modern school, Middleton County Secondary Modern boys school in Leeds. I spent 34 years in the teaching profession and I regarded it not only as a profession but as the most noble and decent thing that I have done in my life. If I had my life to run over again, I would do exactly the same thing.

One thing was always missing, however. Those of my friends who, unlike me, did not leave school early to try to play football and fail before going into teaching but who became doctors, lawyers or dentists all had a professional body which not only were they proud of but which decided the standards by which they ran their profession and which they met.

It was interesting that last Thursday we had two of your Lordships, the noble Lords, Lord Ramsbotham and Lord Hill, proudly talk about having to visit the dentist. I do not know whether it was an enjoyable experience for the Minister but it certainly was for the noble Lord, Lord Ramsbotham, who was speaking perfectly well today. I suspect that when they went to the dentist they wanted to know that the dentist was registered as a dentist with the General Dental Council, which was set up by the Dentists Act 1956. If they had any doubt, they could have gone on the internet, looked at the register and confirmed that the dentist was qualified, registered and hopefully competent. They would not have liked to go on to the web and seen a phrase saying, “It might be a dentist. The only information we have is that he has not been barred for misconduct and that at some time in the past he did some training”.

That is what we are talking about. Let us remember that this Bill comes from the White Paper, The Importance of Teaching. If the importance of teaching is to say that we are not even prepared to let you as a profession have your own register to decide the standards by which you operate, the standards by which parents have confidence in you and the standards by which society has confidence in you, then God help us.

I can say to the Minister that the dentist that he visited last week was taught by teachers. They got the training necessary to go off to university and to train as a dentist from the teaching profession as it stood. I say to my noble friend that the GTC was set up by the Teaching and Higher Education Act 1998 and that I sat on that Bill. To be fair to the Minister, the Labour Party at the time was not desperately keen on it either. I can remember proposing an amendment to that Bill which set up the register, because the original proposal—the noble Lord, Lord Puttnam, will agree—was to have a GTC but with the Secretary of State having the register. It was through good argument during the passage of that Bill that we persuaded the then Government that essential to a GTC must be a register of teachers who were not only trained and competent. That was the very basis of it.

I support much of what the Minister wants to do in saying to schools that they are going to have greater autonomy, that head teachers will have greater autonomy and that the Government are going to set up all sorts of different organisations, although we may or may not agree with some of them. But to say that the one group of people who cannot have autonomy are the teachers themselves as part of the teaching profession is sad indeed.

As the noble Lord, Lord Knight, mentioned, for the Secretary of State to say in his White Paper that there is,

“no calling more noble, no profession more vital and no service more important”,

than teaching and then, at one stroke of the pen, say, “Ah, but you are not even worthy of having your own teaching council”—my goodness, Minister, you really do need to think again.