Education Bill

Baroness Garden of Frognal Excerpts

Tuesday 18th October 2011 Lords Chamber

[Baroness Brinton]

My Lords, I also support Amendment 33, which I have added my name to. I will not rehearse the arguments that have been made by noble Lords who have already spoken except to say, as I said in Committee, that these issues about safeguarding are absolutely paramount. There is one area that no one has picked up on but of which I have personal experience. Looked-after children, foster children or children with difficult family arrangements often have complex arrangements at the school gate. For this particular group, it is always vital that the parent with the residency order knows exactly what is happening.

My own experience was at primary school level, where the school was fully on board with all the issues. In a large secondary school with 1,200 pupils, I worry that a teacher or head of department handing out a detention might not be aware of such complex arrangements. For such reasons, which also come back to safeguarding, this is really important. Amendment 33 does not ask for much. The key thing from this Side is for the Minister to please look again at the wording. We want a really clear statement that nothing will be done that will compromise the safety of the child. That is the absolute nub of it. We can all give many more anecdotes but fundamentally, at its root, this is about the safeguarding of children.

[Baroness Garden of Frognal]

My Lords, there is clear evidence that good standards of behaviour are vital if children are to receive a high-quality education. We know that a clear and consistently applied behaviour policy, including rewards and sanctions, helps schools to achieve these standards—indeed, noble Lords have acknowledged that in their comments.

There is strong public support for improving the standards of behaviour in schools. A recent survey for the Times Educational Supplement found that 91 per cent of parents and 62 per cent of children favour tougher discipline in secondary schools. The same poll found that 88 per cent of parents and 60 per cent of pupils supported teachers in giving after-school detentions. The head teachers who gave evidence in the other place made clear that detentions are a key part of maintaining good behaviour. As has already been mentioned, Sir Michael Wilshaw went so far as to say that detentions were,

“a crucial plank in our behavioural policy”.

There is a certain level of agreement among us that behaviour patterns and detentions are part of a way in which a school operates effectively.

This clause removes the requirement for schools to provide 24 hours’ written notice of detention outside school hours. In doing this, we seek to enable head teachers and teachers to use detention in the way most suited to the circumstances of their individual schools and in the way that is most appropriate to the pupil or incident with which they are dealing.

Various concerns have been raised today. It might be helpful to noble Lords if I set out what a school has to do, by law, to issue an after-school detention at the moment. First, under Section 89 of the Education and Inspections Act 2006, the head teacher must determine and make generally known in the school and to parents whether the school issues detentions outside school hours.

Secondly, Section 91 of the same Act requires that detentions must be reasonable and constitute a proportionate punishment in all the circumstances. There must also be strong assurances that, when issuing a detention, school staff must have regard to any known special circumstances of the pupil, including the pupil’s age, any special educational needs, disability or religious requirements. That would certainly affect any looked-after children or children with caring responsibilities.

Thirdly, a further safeguard in Section 92(5) of the Act provides that if arrangements have to be made for a pupil to travel home after a detention then, when deciding whether a detention is reasonable, the member of staff must take into account whether suitable travel arrangements can be reasonably made by the pupil’s parents. Many noble Lords have raised concerns about children being unable to get home after detentions in rural areas but we believe this safeguard is designed to address that concern. It is already there, as one of the safeguards that the school must have regard to. A detention that left a child unable to get home in a safe way would not be reasonable in the circumstances and would be in breach of the existing safeguards. I can well understand my noble friend’s point about children with caring responsibilities, and with these other difficulties that we have outlined, but the safeguards above prevent a young carer being given an out-of-hours detention if it is unreasonable, given their individual circumstances.

There is one additional requirement: that parents must be given 24 hours’ written notice of a detention outside school hours. So, in the long list of requirements that schools must follow before issuing an after-school detention we want to remove just one. Why do the Government want to remove the requirement for 24 hours’ written notice? We have had briefing from the Association of School and College Leaders, which made it clear that,

“generally such punishments are most effective if they take place as soon as reasonably practical”.

Indeed, the noble Baronesses, Lady Jones and Lady Howarth, both acknowledged the fact that immediacy of punishment for a crime is a much more effective way of disciplining young people.

The requirement as it stands also places many good schools that issue 15-minute detentions at the end of the school day in breach of the law. These schools do not and would never for a moment consider jeopardising a pupil’s safety or damaging relations with parents. Of course, even with the present requirement for written notice in place there is no guarantee that parents will be aware that a detention is happening. Schools may send the notice home with pupils, who may or may not pass it on to the parent. Equally, an e-mail from the school may not be read that day or parents may not be contactable by telephone. This means there may be cases where parents have not been aware of detentions in advance, but we have absolutely no evidence that this has led to children’s safety being compromised.

My noble friends’ amendment seeks to replace the present requirement, which I think we agree is problematic, with one under which parents must confirm that they are aware of a same-day detention after school, or must receive 24 hours’ notice of it. We well understand their intentions; we would all want parents to play a full part in ensuring high standards of behaviour and to be aware when their child is at school. I fear, however, that the amendments would cause similar problems to the current requirement. Asking that a parent confirms that they are aware of a same-day detention means that a teacher would be prevented from keeping a pupil back, even for 15 minutes at the end of the last lesson of the day, without first making arrangements to contact the parents. Noble Lords can imagine how long that could take and that on many occasions it will be impossible to gain confirmation at short notice that a parent is aware of a detention. I remind noble Lords of all the safeguards which are already in place to make quite sure that transport is there and that the young people do not have caring responsibilities, where after-hours detention would obviously not be appropriate.

There are other cases where an unco-operative parent could, in knowledge of such a requirement, ignore attempts by a school to contact them in order to prevent a same-day detention. They could simply let phone calls go to voicemail or not answer an e-mail, so the whole thing could escalate way beyond the 24 hours —and way past the time when the young person had done the disciplinary matter—and escalate the punishment to a level which was never intended. It is because of these consequences of well intended regulation that we believe it is necessary to remove the requirement and rely on the extensive existing safeguards, which require schools to act reasonably in all the circumstances.

Having said that we are not attracted to regulation we take immensely seriously the concerns raised today and in Grand Committee. We therefore propose that advice to schools on this matter could be strengthened to make sure that schools understand what they should do to act reasonably. An addition to the guidance on behaviour and discipline in schools will say:

“When judging whether a detention outside school hours is reasonable teachers should consider whether it is appropriate to give notice to parents”.

They should obviously make every effort to contact parents, but with all the other safeguards in place, and never in any circumstances take actions that would compromise the safety of the child.

[Baroness Hughes of Stretford]

I am grateful for the Minister giving way. Will she consider this point? She is stressing that the other requirements, particularly that the school act reasonably, are sufficient safeguards. Would she agree that in removing the requirement to give parents notice she is, in a sense, changing the threshold of what schools could regard as reasonable? Reasonableness is going to mean something else and it could mean—would mean I would argue—that it would be reasonable for the school not to try to inform parents. Therefore, the stress she is putting on the safeguard of reasonableness would actually be completely diminished.

[Baroness Garden of Frognal]

My Lords, I take the point the noble Baroness makes. However, we have to accept that schools take massive care of the children in their care and do not take these measures lightly. We are talking about short periods of detention after school for pupils who can get home safely; those who do not need to catch the school bus and so on. All those are already enshrined in the care and the regulation. We seek—and we hear the very grave concerns being expressed by noble Lords—to make quite sure the guidance is strengthened to ensure that child safety is never compromised by the school’s actions. We feel that the safeguards already in place strike the right balance between ensuring that children are safe and allowing schools to take proportionate action—to use their discretion and professional judgment—to establish the arrangements that work best for them.

We hope that my noble friends and the noble Baronesses will agree to work with us to see how we can strengthen the guidance that goes with these measures and meanwhile will feel able to withdraw their amendments.

[Baroness Jones of Whitchurch]

Before the noble Baroness sits down, I want to clarify when she is proposing now. We were sent a copy of a draft document on detention, which says:

“When judging whether a detention outside school hours is reasonable teachers should consider whether it is appropriate to give notice to parents”.

Is the noble Baroness now saying that is going to be strengthened or is that the wording that is on offer? I want to clarify that point.

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[Baroness Garden of Frognal]

These are draft guidance documents at the moment. We hear the strength of feeling that has been expressed around the House and would certainly welcome consultation to see if we can find a form of words that reassures noble Lords. We feel that all the measures are in place, but obviously some noble Lords feel that they are not strong enough, so we will be looking at the draft guidance to make quite sure the wording is appropriate.

[Baroness Walmsley]

My Lords, I am most grateful to the Minister for her reply. We would all agree with some of her opening remarks that there is strong public support for good behaviour in schools. We all know that that helps children to learn. However, I do not accept there is strong public support for this particular measure and like the noble Baroness, Lady Howarth, I, too, did some research over the summer with some ordinary parents and I had exactly the same responses as the noble Baroness.

The Minister said that schools must do this in a way which is most appropriate for the pupils with whom they are dealing. Where does it say that? It certainly does not say it in the legislation. It must say it, or something like it, in the guidance. My noble friend carefully went through the other duties that schools have to safeguard children, which have been laid into other statutes. I accept all that. Punishments have to be proportionate and reasonable and travel arrangements have to be considered. They are already there, but the question for a teacher looking at the guidance is: where are they? The guidance needs to have these duties clearly spelt out on the same page where a teacher is being told what they can do under this new law. It needs to be very clear.

I often wonder where this idea came from. My noble friend the Minister has told us that it came from the ASCL. Why does the ASCL have such influence over this Government? The other head teachers’ union does not have the same influence and other ordinary teachers’ unions do not. I am afraid I have a nasty suspicion that this bit of the Bill seeks to enable legislation to catch up with practice, and that some schools are following this practice without giving 24 hours’ notice. I accept that notes in satchels do not always get to parents and that the current requirement for 24 hours’ written notice often does not reach the parent and the parent is not notified. We are asking for something better than that. We are suggesting a way of ensuring that the parent is informed to enable them to make other arrangements for the child to get home safely, if possible. If they are not able to do so, as the noble Baroness, Lady Howarth, said, because they do not have a car and an alternative bus is not available, they can make the school aware that there could be a safeguarding problem if the child is kept in. It is then up to the school under the other duties that my noble friend has outlined to punish the child at a different time.

My noble friend suggested that some unco-operative parents may fail to answer the phone and let the message be recorded on the answerphone. I do not think that these parents have a crystal ball. When the phone rings, they cannot possibly know that it is the school ringing up to say that little Johnny will be kept in after school that day. That is stretching things beyond reality.

I am delighted that my noble friend has accepted that there is scope for strengthening the guidance. I was very pleased to hear that. She made it very clear on the record from the Dispatch Box that teachers should not do anything that compromises the safeguarding of the child. That gives me comfort. If we can work together to ensure that that is made crystal clear in the guidance, I will not feel that I need to return to this at a later stage. Can my noble friend nod and affirm that we can do that work and get the guidance to say something of that nature? It is vital that we help teachers to make good decisions about when to use this weapon in their armoury.

[Baroness Morris of Yardley]

Before the noble Baroness concludes, will she also reflect that essentially what we are setting in place is a two-tier style of punishment? If you think of it from the teacher’s point of view, what is underpinning this is that a detention on the same day as the crime that has been committed is more effective because it is closer in time to that crime. We will now have schools with two groups of pupils—those pupils who are eligible to receive that punishment and those who are not.

[Baroness Garden of Frognal]

I apologise to the noble Baroness but I am double tasking as a government spokesman and a Whip today. The rules at Report state that a noble Lord may not come back after the Minister has spoken.

[Baroness Walmsley]

Perhaps I may complete my remarks. I absolutely agree with the noble Baroness, Lady Morris of Yardley. As I have said, rural schools will not be able to use this measure but some urban schools will. However, as my noble friend Lord Storey said, not all urban schools will be able to use it because there may well be safeguarding issues in urban schools as well. However, as I said, I am comforted by what my noble friend the Minister has said. I look forward to further discussions with officials on how we can produce guidance that really helps teachers to do what they need to do but at the same time not compromise the safeguarding of children. I beg leave to withdraw the amendment.

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NASUWT was asked to see if it could find evidence and it came up with five cases. However, three of those concerned publicity about trials, not pre-charge publicity, so they were irrelevant. The other two concerned acquittals. The latest evidence that we have, which comes from a consultancy—I think that it is called York Consulting LLP—provides completely irrelevant statistics. Not a single statistic that it presents has anything to do with pre-charge publicity.

[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.