Education Bill

Lord Phillips of Sudbury Excerpts

Tuesday 18th October 2011 Lords Chamber

[Baroness Hughes of Stretford]

My Lords, I do not want to oppose any of the amendments that the Minister has tabled but I want to sound a cautionary note and put it on the record following our extensive discussion of the principles underlining the Government’s proposals in Clause 13. We had an extensive debate in Grand Committee and part of it was around the question that the noble Lord, Lord Phillips, put acutely: whether the Government had made the case that teachers are in a unique position in relation to allegations of abuse, such that the restriction on reporting was justified. He said that,

“if Clause 13 goes through unamended, it will repose in the teaching profession a privilege unique in English law”.—[Official Report, 6/7/11; col. GC 158.]

I want to preface my remarks with great concern for any person in any profession against whom allegations of child abuse are made and are not true. I completely understand the concerns about blighting a career and suspending a person in an anxious time while investigations take place. I have a son who is a teacher at a primary school and many sisters and some brothers-in-law who are teachers, so I am appraised of and concerned about that side of the argument. I also understand why the teaching unions make it. However, I am also concerned about safeguarding children and that is the difficult territory that we are in here.

The Government offered, in response to our debate in Grand Committee, to do some research to see what the figures were. That research has now been published and was referred to in the press at the weekend. When noble Lords look at the figures, they will see that of the cases examined—more than 12,000 where allegations were referred to local authority designated officers—under a quarter were in relation to teachers. If you add in the smaller, but none the less substantial, numbers of non-teaching school support staff, it is still well under a half of all the allegations. It is more telling that for teachers—this was the headline in the press—nearly half of the allegations, which came to 2,800 cases, were classified as unsubstantiated.

This does not mean that there was no truth in the allegation but that the threshold of evidence for prosecution could not be reached. This is difficult territory because most of those allegations will depend only on the word of the pupil against that of the teacher. There will not be witnesses present in most of those allegations. “Unsubstantiated” means that there was insufficient evidence to proceed; it is not a judgment about whether the allegations were true. Even more telling than that is that only 2 per cent of the allegations against teachers and FE lecturers were classified as malicious. The guidance issued by the Government in August makes great play of, and refers extensively to, malicious allegations, and yet we now have from the research a finding that only 2 per cent of allegations were malicious.

I am not going to oppose the amendments. I understand why the Government have acceded to the pressure from the unions, although we decided at the time, because of the problems that arise and the concerns about safeguarding, not to accede to that pressure because it opens up the other argument about where to draw the line. As I say, there were smaller but substantial numbers of non-teaching staff—some 1,700—against whom allegations were also made. I simply sound a cautionary note to the Minister. I hope that we do not find further down the line that a serial abuser—there have been serial abusers in schools—gets away with abuse over a long period because none of his—they are generally men—crimes could be reported because the evidence in relation to each one never reached the threshold for prosecution. I hope that in passing this legislation we are not responsible for the preventable abuse of any child. I say this without wanting to castigate the Government, but it is very difficult territory and I am not sure we are in the right place. I understand why the Government have done this but we will have to watch the situation very carefully.

[Lord Phillips of Sudbury]

My Lords, my name is attached to all the government amendments bar one. As the Minister said, these amendments arise out of the debate in Grand Committee and I welcome them all. The only amendment about which I have reservations —because I do not understand it—is the first one, which would insert “or may be” in line 12 on page 20. It would then say that:

“This section applies where a person who is or may be employed or engaged as a teacher”.

Perhaps the Minister could explain the purport of that insertion when he responds.

The only thing I cannot resist saying is that sometimes we make life difficult for ourselves—or, more truthfully, for those who have to understand this legislation. There are two references in Amendment 49 to “a matter”. It states that,

“the person who is the subject of the allegation includes a matter in a publication”.

Such arcane language is surely to be avoided if at all possible. Why we cannot say “includes information in a publication” I do not know, except that there is reference in an earlier subsection to “matter”.

Amendments 48 and 51 concern a more important issue. They represent the two most important amendments I put forward in Grand Committee, which the Government decided not to accept. I have reworded the second of these amendments, Amendment 51, but the first is more or less verbatim the amendment that was argued in Committee. I remind the House that in Committee on 6 July—in cols. GC 158 to 178—not a single Member of the Committee objected to any of the amendments put forward, largely for the reasons that we have just heard. In my view, and I think in that of all who have spoken so far in relation to Clause 13, this is utterly wrong in principle. As has already been said, it will be the first time in English law that free speech has been curtailed in this way and where a statement that is true can be the subject of a criminal prosecution. It is not an issue just of press freedom but of individual freedom. It will curtail the freedom of speech no less of worried parents or guardians. The full panoply of criminal law can be arraigned against a parent who suffers the greatest anxiety in relation to a child, where the child maintains that he or she is being abused. The parent is prevented by law from publicising the allegation of the child, however true, and for what? To protect teachers.

There is no one in this House more admiring of teachers than I am. I find myself in a very strange position on this clause. I wish it were not teachers at whom I seem to be aiming my gun. Freedom of speech and protection of children come before the pain and embarrassment which undoubtedly occur for some teachers with regard to false allegations. I have to say—I do not like saying it—that my Government are bending over so far to placate the teaching profession, and perhaps make up a little to that profession for other actions that they have opposed, that they are committing us to a law which our successors will think was a blot on the great and fundamental freedom of speech that is indispensable, particularly today.

I was a governor for 10 years of one comprehensive school and of another comprehensive school as a parent governor. My wife is a state school teacher. The prejudice that I have is for the teaching profession but I do not speak from ignorance. I should quickly say what I said last time: it is almost a declaration of interest. I was unfortunately at a school where a predatory pederast was allowed for 12 years to do his doleful work. He eventually resigned or was dismissed—one does not know which—in the middle of a term. He was never seen again and absolutely nothing was made of it although he had blighted the lives of dozens of children. The reason that nothing was heard of it is the reason why nothing is heard of these cases in today’s educational world. It is no good the Minister saying that there are regulations for this and obligations to report on that. For schools that suffer some of the worst abuses—fortunately they are few—the truth is that the cost to the school’s reputation and standing of the truth being publicised will be devastating. Often, as in my own case, the governors hushed up the whole grisly affair, as governors today will, if they can, hush up grisly affairs of a comparable nature. That is why I have put forward these amendments and persist in them.

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[Baroness Garden of Frognal]

I apologise for interrupting my noble friend but he will be aware that the convention of the House is that 15 minutes is normally considered the maximum speaking time, and he has now been speaking for 19 minutes. I wonder whether he would be kind enough to wrap up his comments.

[Lord Phillips of Sudbury]

I apologise to the House for overrunning the conventional time. I suppose it is because I take such a profoundly serious view of these curtailments of free speech that I have overrun the 15 minutes. However, I will wrap up my remarks quickly. Not one of the statistics to which I referred relates to the subject matter of Clause 13, which is pre-charge publicity—not allegations but pre-charge publicity. As regards allegations, 28 per cent led to disciplinary proceedings, more than 50 per cent had some substance and 18 per cent involved suspensions.

I am grateful to my noble friend for the concessions he has made. He may have had to battle for some of the concessions that he has wrung out of his colleagues. However, he does not accept my Amendment 48, which deals with the raising of the cap on freedom of speech in the case of a teacher who resigns or is dismissed, or Amendment 51, which allows a parent whose child has come home complaining of an assault to at least e-mail the other parents in the class to ask them whether they have had any experience of Mr Jones doing what he ought not to do, or e-mailing the staff, for example. To prohibit that seems to me utterly wrong. I speak to these two amendments in that spirit.

[Baroness Walmsley]

My Lords, I have some amendments in this group. Like my noble friend Lord Phillips of Sudbury, I welcome the Government’s amendments. I congratulate my noble friend Lord Phillips on his success in persuading the Government to improve this clause as far as they have. However, I join him in urging the Minister to consider whether he could go a little further. There is devastating logic in what my noble friend says. I am also aware of cases where the abusing teacher has been asked to go away quietly so that no more will be said about the matter. Speaking of logic, I have two amendments in this group which seek to follow government policy and prevent an unintended consequence of this section of the Bill.

Noble Lords may remember that in Committee, speaking to Clause 42 stand part, my noble friend Lady Brinton said on behalf of both of us:

“I would also like to ensure that, where there has been abuse, the subsequent inspection overtly inspects what action has been taken, and openly reports whether the failures that allowed the abuse to occur have been put right. … Parents expect it, and children deserve it”.—[Official Report, 12/9/11; col. GC 117.]

I hope that the Minister will agree with that because it was the 22nd recommendation of the report of Sir Roger Singleton of June 2009, which was agreed to by the then DCSF under the previous Government. Significantly, the DfE under this Government also confirmed adherence to that positive response given in June 2009. Indeed, I know that our honourable friend Mr Tim Loughton has been considering how he can implement this and other recommendations of the Singleton report. There was some news of that only this morning.

Of course, I am aware that Clause 13 only prevents a publication identifying a teacher who is the subject of an allegation. However, the difficulty sometimes arises where writing anything at all about an event might lead to readers having a very good idea of who it might have been. For example, if something occurred on a field trip and there had only been one field trip that year, then it would be possible to identify the alleged perpetrator. So my amendments seek to ensure that we do not fetter the ability of a regulator or a responsible Ofsted inspector to do their jobs properly and to write in their reports about what happened and how the school has, or has not, put measures in place to prevent a repetition. This is what Sir Roger Singleton recommended should happen and that wish has since been endorsed by the previous Government and the current one.

So I hope that the Minister will now see that, in tabling Amendments 50A and 50B, I am trying to avoid that unintended consequence. I believe that Clause 13 as currently written could prevent a regulator or inspector from producing an adequate school inspection report following a case of abuse; a report which stated what action the school has taken. Has my noble friend had time to consider these small, but, I hope, helpful amendments, since they seek to implement what I believe to be the intentions of the Government as well as of the previous Government; intentions which were so well set out by Sir Roger Singleton’s recommendations?

I support what my noble friend and the noble Baroness, Lady Hughes, have said about the research that has been circulated to us from York Consulting. I looked at that myself, quite independently of my noble friend and the noble Baroness, and it occurred to me too that there was not a single fact in there that supports the need for this legislation; not one fact that talked about hyped-up, unwarranted publication of the name of a teacher prior to charge. There were lots of statistics about the increase in the number of allegations, lots of statistics about how many of those were eventually found to be unwarranted, but not a thing about publicity. So I still have great reservations about this legislation, despite the fact that in Amendments 50A and 50B I am trying to improve it, because I just do not feel that the Government have yet disclosed to us the pressing need for it, despite what the teaching unions would perhaps like to see. I really would say to the teaching unions—and I have said to the teaching unions—give me the evidence. Where is the evidence about these large amounts of terrible publicity that have brought the Government to decide that they need this legislation? I simply have not seen it yet.

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[Lord Hill of Oareford]

My Lords, we had a very good debate about this issue in Committee, and, although the hour is late, we have just had another such debate this evening. I recognise the point that the noble Baroness, Lady Hughes of Stretford, made at the beginning: this is not a completely straightforward issue. There are difficult interests to balance. I understand the force of the arguments that have been made about the importance of safeguarding children. I am extremely clear that a huge amount of progress has been made over the years in making children safer in school, thanks to steps taken by the last Government, and no doubt Governments before that. To respond to the point raised by the noble Baroness, Lady Howarth, we have no desire to do anything to unwind or undermine any of that. I listened with care to the point she made about Childline. My understanding is that the Bill would not prevent children talking to Childline, and Childline talking to parents. However, I understand the force of what she was saying, and I will check that that is the case. Clearly one would not want a measure inadvertently to have the effect which she raised.

At the heart of this, and the reason why the Government are doing this, is the evidence that has been provided to us on this issue. I think that that evidence is not contested: I know that there is a difference of opinion about the strength of the evidence of the number of cases of pre-charge publicity in the press, but there is an acceptance that we have a problem, that there is a growing number of allegations made against teachers, that teachers are fearful of this trend, and that they are fearful of the effect that it has on their ability to exercise their position of authority in the classroom. We think that they have a particular position—

[Lord Phillips of Sudbury]

I am sorry to interrupt my noble friend the Minister, but he is wrong about these statistics. The JCHR misread the NASUWT statistics. I said in Grand Committee that,

“for the past three years there has been a decline”,

in the number of allegations—and this is on the statistics in the JCHR report. In 2008, there were not 181, as there had been the previous year,

“but 148; in 2009, 115; and, last year, 107. Yet the Minister in the other place said that the number of allegations had increased, which is simply wrong”.—[Official Report, 6/7/11; col. GC 172.]

With great respect, I suggest to the Minister that he does not follow down that fallacious track.

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[Lord Hill of Oareford]

My Lords, getting an accurate picture of the extent of the problem is difficult. I accept the point made by my noble friend Lord Phillips that, through the research that the department has carried out by going online and looking at local press reporting as best it can, so far the number of cases that it has come up with is a multiple of five, but not many multiples of five. I think that the number circulated after the recent survey carried out for the department was 15. I accept that that is not a large number. However, the principle and the concern that underlie it are what we seek to address.

I will now address the amendments that my noble friend tabled rather than the general principle. The first area where he thinks that the clause gets the balance wrong is in relation to communication within the school community. His Amendment 51 seeks to ensure that pupils or parents will not breach reporting restrictions by communicating with other parents and other members of school staff. An example of where this might happen is if the parent wishes to communicate with other parents about an allegation that their child has made against a teacher. I should clarify that parents would not breach reporting restrictions by holding private conversations whether in person or online. The reporting restrictions would apply only to communication to the public at large or any section of the public.

My noble friend argued that a parent might wish to communicate with a section of the public in this way in order to seek corroboration of an allegation against a teacher before raising it with the school. We think that the effect of his amendment would be wider than that and would exempt from reporting restrictions communications by any pupil or any person acting on behalf of the pupil to any section of the school community and so reduce the protection the clause gives teachers against malicious or unfounded gossip. For example, it would allow pupils or parents to use a forum on the school network to publish an allegation against a teacher widely within the school community. I agree with my noble friend that parents should be free to follow up allegations made by their children, but I do think—I know he was dismissive of this point—that they should do that through appropriate channels by raising the issue with the school or the relevant authorities rather than by launching their own inquiries or campaigns. He knows, because I have discussed it with him before, that I am aware of a number of cases where e-mail campaigns against teachers are led by parents to whip up a campaign against them. We would not want that to be allowed to happen.

[Lord Phillips of Sudbury]

The Minister is surely aware that if anybody whipped up, as he put it, a campaign that was untrue, they would be subject to very heavy libel or slander damages.

[Lord Hill of Oareford]

I am aware of that, and we have discussed that point before. I know that is the case, and I defer to my noble friend who is a very distinguished lawyer, who I think used to do libel. To expect a teacher who finds himself the subject of a malicious campaign to take a libel case on his own account, financially, emotionally or in any other way, is not a practical course of action.

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Tabled by

[Lord Phillips of Sudbury]

48: Clause 13, page 21, line 16, at end insert “, or
(c) the person who is the subject of the allegation resigns or is dismissed from the relevant employment or engagement.”

[Lord Phillips of Sudbury]

My Lords, in the light of what the Minister said—if I can put it this way without seeming to be patronising—he made the very best of a lousy hand. Given the time of night and the payroll vote visibly present on the Front Bench, prudence gets the better of passion, and I fear that, for tonight, free speech and the protection of children will have to be left on the sidelines, so I do not move the amendment.

Amendment 48 not moved.