Education Bill

Debate between Lord Phillips of Sudbury and Baroness Hughes of Stretford

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.

Education Bill

Debate between Lord Phillips of Sudbury and Baroness Hughes of Stretford

Wednesday 6th July 2011 Grand Committee

[Lord Phillips of Sudbury]

With great respect to the noble Baroness, I cannot agree. Perhaps that is because I am a hoary old lawyer and she, happily, is not. A 15 per cent conviction rate in respect of all the allegations made is a very high outcome. I will happily discuss this with the noble Baroness outside the Room. The ATL figures seem to me to be hopeless as a basis for bringing in this important reform.

The JCHR seems to be lacking in awareness of the balance of injustice and harm between pupils, particularly young ones, and their teachers when it comes to criminal allegations. We are in danger—and in the other place they are even more in danger—of expecting too much of the law. It is not the finely tuned truth machine that ideally we would like it to be. It never can be, given the machinations of mankind, despite the best efforts of our excellent judiciary. We do not talk about rough justice for nothing. That is why in criminal law we have a test of proof beyond reasonable doubt, rather than the lesser, civil test which is based on a balance of probabilities. The bias towards the accused is necessary to protect the innocent from conviction, which we as a society believe is much more important than convicting every guilty person.

We are not talking here about conviction or acquittal but about the freedom of the press to report, within the bounds of defamation, where criminal allegations are made, pre-charge, against teachers. We have to balance their vulnerability to unfair reporting against the undue sheltering of teachers, the interests of actual and potential victims and the interests of the public.

I turn finally and briefly to paragraph 112 of the June report of the JCHR, which states that,

“defamation proceedings offer no protection”,

to a teacher,

“where a report states that an allegation has been made”,

provided that it,

“does not assert that the allegation is true”.

The noble Lord, Lord Hill, referred to this in his earlier reply.

As one who has done a considerable amount of defamation work and overcome that defence put up by newspapers, I can only think that the committee is wrong when it says that libel proceedings offer no protection. The Reynolds case in 2001 and the Jameel case six years later prevent newspapers sheltering behind the defence of qualified privilege—or reportage, as it is called, in relation to a matter of public interest unless they comply with sensible tests. In the Jameel case, the noble and learned Lord, Lord Nicholls of Birkenhead, said that newspapers would not have a defence unless the report was responsible, fair, on a matter of public interest and in compliance with certain other tests, which would include the obligation to evaluate fairly and sensibly the basis of an allegation. They cannot simply recycle a verbal report of an allegation or something given to them by letter without checking. They have also to check with the person aggrieved, the teacher. They have to give the gist of both sides of the story and, importantly, they have to look at the whole tenor and pitch of the article. I hope that that is enough to show that teachers who are the subject of sensational, biased, unfair reports pre-charge have protection. One or more of the unions might make it their business to pick up a couple of test cases, which they could take and use to make their point. Believe me, that would reverberate around Fleet Street very quickly, as my noble friend Lord Black will confirm.

Teachers might also take up the invitation of the Press Complaints Commission—again the noble Lord, Lord Hill, referred to this—to report grievances in relation to pre-publication publicity. He rightly said that there had been none. But, as the JCHR report says, the notion that no complaints are made because it is a useless thing to do is simply not right. First, it costs nothing to make a report to the Press Complaints Commission. Secondly, it has very real powers over its newspaper members. It can and does make them publish retractions and apologies. So I do not agree with what it and my noble friend have asserted.

To summarise, I sincerely believe that the case for this most important of limitations on press freedom, albeit put forward with sincere concern for a most highly valued section of our community, is unsafe. Surely, the onus is on those who would restrict press freedom, especially to a single group and in a way never ventured before, to prove beyond reasonable doubt that such a change is unarguably essential. But, as I have endeavoured to show, the Government’s lack of direct relevant evidence as to the present extent of pre-charge publicity affecting teachers is all but total. It is that publicity, and that alone, which Clause 13 addresses. Not only is the need for the clause wholly unproven but it could and will unfairly disadvantage pupils and, in the worst cases, prevent teacher abuse ever seeing the light of day if a charge for whatever reason, and there are many, is never brought or if a school fails to bring disciplinary procedures against a teacher, and there are many reasons why that might be the case. Nor will truth be a defence, as I have indicated. For those main reasons, I propose that Clause 13 should not stand part of this Bill.

[Baroness Hughes of Stretford]

My Lords, I did not think that there would be anything for me to say on the clause stand part debate but I want to make one broad comment. When I opened the consideration of the first group of amendments, I introduced the criterion that one of the bases on which we should make a judgment about this matter is the basis of the evidence. In summing up that debate, I pointed out that the Government have not produced what the Minister said was important; namely, an evaluation of the impact of the current measures on reporting of pre-charge allegations against teachers. The whole Committee has to be very grateful to the noble Lord, Lord Phillips, who has researched this and has produced some figures today, which look remarkably small in terms of the incidence of pre-charge reporting of allegations against teachers.

Today, I will go no further than to say to the Minister that, at the very least, he has to come back to every Member of the Committee before Report with as definitive information and statistics as he can gather on the current incidence of the reporting of cases against teachers before charges are made and some evaluation of the quality of that evidence. One point that I should make to the noble Lord, Lord Phillips, is that I think that his figures are very compelling. I cannot make a judgment today on whether they are the total number of cases or not. It may not be possible to get that information, but the Committee, in deliberating further on Report, must have the best information that the Government can put forward on that matter and an evaluation of how robust that information is so that we can make a judgment.