Education Bill

Baroness Garden of Frognal Excerpts

Monday 4th July 2011 Grand Committee

[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.

[Baroness Massey of Darwen]

Is the Minister aware that quite often teachers and heads are not aware that there might be a problem at home? My noble friend gave the example of young carers. Young carers often do not wish to be known as young carers. I find “appropriate” and “reasonable” quite difficult to grasp in these circumstances.

[Baroness Garden of Frognal]

In the case of pupils who were young carers, one hopes that that would be known by the schools, although I grant you that it might not be. Once again, we come back to the fact that detentions without 24 hours’ notice would occur in very exceptional circumstances. Teachers would ensure with the pupils concerned that there was no reason for it to be inappropriate for them to be detained in those circumstances. Teachers are already legally required to take appropriate and reasonable action in giving an out-an-hours detention and to consider all the relevant circumstances. I do not believe for one moment that they would be gung-ho. We should listen to head teachers when they tell us that this measure will help them.

My noble friend Lord Willis asked how many schools applied for a power to innovate. The answer is probably none, because few schools have ever applied to use the power for any reason. It would simply be something that they had it in their power to do if the need arose.

[Lord Willis of Knaresborough]

I am grateful to the Minister for responding so quickly and to the Box for finding the response. She makes exactly the point that I want to make; namely, that these powers already exist. You do not need additional legislation to have an impact here. If a school wanted the power, it could simply apply to the Secretary of State under the 2002 legislation and the Secretary of State would gladly give it to them.

[Baroness Garden of Frognal]

My Lords, there is currently a ban on giving a detention without 24 hours’ notice. That is why we are legislating here to enable schools to have the additional power if they wish to use it in very special circumstances.

[Lord Willis of Knaresborough]

I apologise if I am being incredibly stupid, but the 2002 Act gives the Secretary of State the right to grant to any school in England earned autonomy and the power to innovate. If you have the power to innovate, surely that takes precedence over any legislation, otherwise—I say with due respect—the 2002 Act becomes meaningless.

[Baroness Garden of Frognal]

With due respect to my noble friend, I think that it would be quite a time-consuming process for each school to apply to the Secretary of State for a power to innovate for a circumstance which would be likely to arise very seldom and which would need immediate action. Processes for expecting in advance to be able to do this are not practical.

[Lord Willis of Knaresborough]

I am sorry to take up the Committee’s time but this is important. It would not be done on every occasion. As a school, you apply for the power to innovate and you put it into your polices that you have the power to give a detention without notice—end of story. Why is new legislation needed?

[Baroness Garden of Frognal]

Each school would have to apply individually for that power to innovate. We are setting in legislation the fact that each school would not need to apply individually to the Secretary of State; they would have it as an additional power which they could use on the rare occasions that the school deemed that it was an appropriate way of dealing with a pupil’s behaviour.

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[Baroness Jones of Whitchurch]

Before the noble Baroness sits down, I want to be clear what she is saying. Is she saying it is okay to have short-notice detention and not to tell the parents, because that seems to be the message? That raises all the concerns that people around the Room have raised. By all means have short-notice detention but make sure the parents are told. It seems she is saying it is not necessary. All our amendment is doing is to make sure the parents are told. That is a safeguard—the check and balance that is needed. I have not heard a convincing case why we should not insist that parents are told.

[Baroness Garden of Frognal]

We are talking here about a detention which might be as short as 10, 15 or 20 minutes after school. In that case there would not be time to get hold of most parents to tell them their child was being detained. If all the safeguards were in place to indicate that there would be no danger or damage to that pupil in detaining them, it might be a short, sharp shock that would just rectify a situation that was getting out of control. It is simply an additional power that the school would have, without all the delays. It will build up into a much bigger issue if you then wait and send a letter back to the parents or try to contact them. The whole thing might escalate into a much bigger punishment than giving a brief and immediate punishment on the spot to a young person who had committed some misdemeanour where all the safeguards were in place to make sure that that child would not be at risk for being kept back for a few minutes at the end of school.

We are obviously taking account of transport and all the other circumstances where this type of detention would not be appropriate. We are doing so in response to head teachers, who have indicated that they would welcome this power. As the noble Baroness, Lady Howarth, said, this is, in a way, a message about something that could be available to them should they need it in very specific circumstances and when appropriate with all the safeguards surrounding it.

We hear the strength of feeling around the Room about this measure but I hope that noble Lords will see that it is a very measured proposal. Teachers would not be inclined to abuse the system but it could be extremely helpful in some circumstances to give an immediate punishment. It would show a young person that they had stepped out of line and that such a punishment was appropriate.

With that explanation, I hope that the noble Baroness will feel able to withdraw the amendment. However, we certainly have taken on board the debate on this matter in Committee and the strength of feeling that it has aroused.

[Baroness Brinton]

My Lords, we have had two debates on this amendment. The latter one that has emerged about the power to innovate and accessibility to current legislation for schools has been interesting. I urge the Minister to reconsider whether the existing law enables the Government to achieve what they want to happen. Should it not do so, I shall want to come back to some of the comments made by other noble Lords today.

There are key safeguarding issues relating to short-notice detention outside school time. That is the fundamental concern behind both these amendments. It is a question of trust in teachers, as espoused by the Ministers, or safeguarding children. Frankly, I think that the balance there always has to be in favour of children. I absolutely take the point made by the noble Baroness, Lady Jones of Whitchurch, and others about children who act as carers. Children may also have non-caring roles that they need to fulfil or other commitments outside school with classes to go to where their non-attendance would cause problems. There are many things that schools do not know about where a short-notice detention out of school time could cause very serious implications for a child.

Parental support is absolutely vital, as many noble Lords have commented. Since the beginning of Second Reading, we have talked repeatedly about partnership between parents and schools. Parents’ support for outside-school-time detention must be a priority, not least because that gives them the chance to make alternative arrangements and it also gives them a chance to say to the school, “In this instance, it is not appropriate to do it straight away”.

I have to take issue with my noble friend Lord Lingfield about this being a new tool in the toolbox. It is a very weighty tool and an absolute sledgehammer to crack a nut. The Minister cited Section 91 of the Education and Inspections Act 2006, as well as another Act, and was confident that all the legislation was in place and that all we were being asked was to trust teachers. However, this amendment and Amendment 62 set out a simple and clear way of making it absolutely unavoidable for a school to contact a parent and get a response. My noble friend Lady Benjamin talked about the importance of a letter going to the child’s home. She is right that in this day and age there are much faster ways of contacting parents, including by text and mobile telephone. Even five or six years ago, as a parent I got messages from school as my eldest had accidents at school and was required to be taken to A&E. If something is that urgent, frankly the school can make contact. If the school is required to contact parents, they must do so.

I come to the final point about a nine year-old at primary school walking home late in November without their parents’ knowledge. In the main, most schools would not want that to happen, but there are occasions when it might. That is why I come back to safeguarding. If it is safeguarding versus trust, safeguarding must come first.

[Baroness Garden of Frognal]

That simply would not happen. It would not be the case that a nine year-old was kept back late in school and allowed to walk home on their own under these circumstances. That is not how this measure is either intended or framed.

[Baroness Brinton]

Whether it is a nine year-old, an 11 year-old or a 12 year-old, the same safeguarding issues are still absolutely there and valid. I am afraid that the problem with the plethora of legislation that was quoted earlier is that it is too easy to miss. There were comments earlier about the message that the Bill sends out about this. There is a clear message from both of these amendments that children’s safeguarding comes first, which is why parents should be notified.

I hope that Ministers will take into account much of the discussion that we have had today, and will able to come back at later stages of the Bill. For now, however, I beg leave to withdraw the amendment.

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[Baroness Morris of Yardley]

I shall speak very briefly in support of the amendment because it is perhaps one of the most important that we will discuss in Committee. I know that we can return to the issue at a later stage. I very much support what my noble friend Lady Hughes said—out of all the obligations that schools have been freed from, this is probably one of the most important to discuss. My reasons for saying that are twofold. I completely accept the need for schools to be independent and I acknowledge and recognise that the Government are working to push that agenda as far as they can. Can the Minister say whether the Government also accept the need for schools to be interdependent? Does he understand the concept that sometimes schools cannot do well for their own children because they are not interdependent with other schools in the system?

If the Government accept that, I have a second question. Of all the things that schools can do, the thing that can most harm a neighbouring school is the exclusions policy. That is what makes exclusions different than a lot of other things. I am sure that the Minister and the Government fully understand that the actions of one school can make it difficult for another to raise standards. That is the powerful case for leaving there the obligation and duty to be part of the partnership. It is, first, about the interdependency of schools as well as the independence and, secondly, it is about understanding that the actions of one school can be very detrimental to the ability of the other to raise standards. Will the Minister reflect on that in her response?

[Baroness Garden of Frognal]

My Lords, I understand and have much sympathy with the intention of the amendment to promote partnership working between schools to improve behaviour and to remove bureaucratic burdens, and with the views put forward by the noble Baroness, Lady Hughes, the noble Earl, Lord Listowel, and the noble Baroness, Lady Morris. I agree that working in partnership to improve behaviour and attendance can help schools to meet the needs of their pupils. Very many schools are already doing this very effectively. We heard from Sue Bainbridge from National Strategies, who worked on behaviour in schools for the previous Government. She said:

“One really good example of partnership working is in Tower Hamlets. No one told those schools to work together; they decided to work together. They share their data now. They not only openly share data with heads and senior leadership teams, but flag up the youngsters who are causing them concern. They ask each other for help with strategies to address a problem.”

The Education Select Committee when conducting research into their report Behaviour and Discipline in Schools, published this February, observed:

“During our visit to Leicester City Council, local partners were confident that there existed an established culture of less challenged schools supporting those with greater challenges in terms of pupil behaviour. Therefore, the removal of the requirement to form BAPs [behaviour and attendance partnerships] was expected to have little impact on local partnership working”.

The fact is that Section 248 is not yet commenced. Therefore, schools that are part of a behaviour and attendance partnership have been doing so on a voluntary basis. No arrangements were planned to monitor or enforce the requirement for schools to form partnerships, and no resources have been allocated to schools to help them with the administrative burden that that would have imposed.

One feature of behaviour and attendance partnerships is that schools pool resources to buy in specialist resources, including SEN provision. There is no reason why this should not continue, because it has taken place without any need for this section of the Act. These examples—the noble Earl came up with an example as well—demonstrate schools’ willingness to work together on behaviour without being required to do so.

Of course, we must hold schools accountable for the outcomes that they achieve for their pupils. Our reforms to the Ofsted inspection framework, which will focus it on the core functions of a school, will ensure that schools are held accountable for the behaviour of their students. How they achieve good behaviour is for each school to decide. If poor behaviour and attendance is identified as a key issue for a school, the management and senior leadership team should prioritise this and take appropriate action. In looking at the effectiveness of a school’s leadership and management, Ofsted will consider how they work with other schools and external partners to improve pupil outcomes.

We have already discussed in debates on previous clauses the Government’s overall approach to improving behaviour in schools. As noble Lords know, one element of this is our trial of a new exclusions process, where schools take responsibility for the education and attainment of pupils whom they exclude. The trial will give us a further opportunity to explore how schools can work effectively together and with others to reduce exclusions and how government can incentivise them to do so.

Perhaps I may respond to a point made by the noble Baroness, Lady Morris. In another place, Kevin Brennan said in a debate on exclusions that he would raise the issues of how—oh, I am sorry. All schools and admissions authorities are required by School Admissions Code to participate in the locally agreed fair access protocol to ensure that children without a school place, especially the most vulnerable, are found a place at a suitable school as quickly as possible.

I hope that I have demonstrated that repealing the legislation will not affect existing partnerships or stop new partnerships from forming. Behaviour and attendance partnerships appear to have flourished without ever becoming mandatory. This part of the legislation has never been put into force. I look forward to seeing this continue in future. I hope that the noble Baroness will feel able to withdraw her amendment.

[Baroness Hughes of Stretford]

My Lords, I thank the noble Earl, Lord Listowel, and my noble friend Lady Morris for their contributions, emphasising as they did the importance for all schools of collaboration and partnership working, and the great contribution that they can make and are making to the creative management of some of the most difficult problems of behaviour, discipline and attendance that schools are addressing.

I am sorry to say that I was not greatly convinced by the Minister’s response. We hear constantly from Ministers that such requirements on schools are regarded by the Government as bureaucratic burdens. I do not think that they are. They have been necessary in order to inculcate the kind of behaviour that we want from schools. The fact that the legislation has not yet been implemented in full does not mean that its repeal will not have any effect. Schools were anticipating this legislative requirement; it was the whole direction of travel of the previous Government. The fact that schools are doing it effectively now—some of them; not all of them—does not mean that the duty to engage in partnership is no longer required. As I said in my opening remarks, Alan Steer pointed out that some schools behave very badly, particularly in relation to exclusions. As my noble friend Lady Morris said, when that happens, it greatly affects all the other schools in the area. His clear conclusion was that all schools needed to be in these partnerships and that all schools should have that duty placed upon them.

I am not convinced that repealing the requirement will not have a negative impact on the partnerships that exist at the moment. We have to look at this matter in the round. We have heard from the noble Baroness, Lady Howarth, today about messages. Taken together, a lot of the messages in the Bill say to schools, “It’s not just about your independence. You can act in isolation. You don’t have to co-operate with the local authority; you don’t have to co-operate with the health service; and you don’t have to co-operate with each other in the development of solutions to these difficult issues”.

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[Baroness Garden of Frognal]

My Lords, the Grand Committee normally finishes at 7.30 pm. We have gone into overtime on this. If any other Lords wish to speak, could they please be very brief to make quite sure that we are not going too far into overtime? My noble friend Lord Lexden has an amendment in this group, but otherwise might we please have a plea for brevity for the convenience of the Committee?

[Lord True]

My Lords, I note what the noble Baroness said. Briefly, I add to the tributes paid to the noble Lord, Lord Puttnam, and others, and the work that they have done. I am slightly surprised that some of my noble friends have supported his amendment. As I read it—and this may be something that the noble Lord wishes to reflect on or help us with when he responds—it slightly has the character of a wrecking amendment, or certainly one leading to a disincentive to take part in a decision on the future of the GTC. The amendment says:

“For such a vote to be valid, 50 per cent of registered teachers must have voted”.

As I read it, the assumption would be that the provision was part of the law of the land. Therefore, in order to frustrate the will of Parliament, as its effect would have been if the Bill had been enacted, those who were unconcerned or perhaps led to boycott the vote could decide the outcome of a ballot such as the noble Lord proposes. Having heard the eloquent statements about the ringing importance of the body in this debate, that is a very negative way of looking at it. I would therefore find it hard to support the amendment under any circumstance. It lacks confidence in the case being put, and is potentially a wrecking amendment in that it sets a threshold that would easily fail to be achieved by dint of a boycott, which is something that we should not wish to encourage.