Education Bill

Baroness Jones of Whitchurch Excerpts

Tuesday 18th October 2011 Lords Chamber

[Baroness Walmsley]

My Lords, this amendment seeks to ensure that if a school wishes to keep a child in detention after school, it must ensure that it has successfully contacted the child’s parent or carer. When we discussed this matter in Grand Committee, I asked that the school should get the agreement of the parent. I believed that I was offering a compromise when I moved towards simply asking that the school should inform the parent, but I understand that the Minister does not think so.

Clause 13 has the potential to put a child in danger and I hope that I will be given a strong reassurance by the Minister that this will not be so. While I trust the vast majority of teachers, surely the Minister must accept that it takes a while for a young teacher to develop the sort of good judgment and common sense that we believe would prevent them from putting a child in danger on the way home. That is why we need to make it abundantly clear in guidance that no teacher may detain a child after school without informing the parent if it in any way compromises the safety of the child.

My noble friend the Minister made the point in Grand Committee that schools already have a duty of care to their pupils under other legislation. That may well be so, but noble Lords know the difficulty of cross-referencing other Acts when we are considering a current Bill that makes changes to earlier legislation. That is why I am asking the Minister to ensure that in the guidance that accompanies this new power, the school is made aware, on the same page, that it must not use this power if it in any way puts the child in danger. In order to check on this, the school will have to find out what the child’s transport arrangements are and ensure that either the detention is so short that it avoids the child missing a bus or that other safe travel arrangements have been made. The school may also need to check on whether the child is a carer, where detaining that child after school may cause another vulnerable person in distress. Schools should already know which children are carers, but they need to be sure in this case. I also think the guidance should make it clear that it is good practice to inform the parents anyway by phone. I can envisage the distress of a parent, waiting at home for a child to step off the school bus, only to find that he does not. The parent will worry herself sick; I know I would have done.

I think that this provision is entirely contrary to the respect with which this Government treat parents otherwise. Only this week, we have received a letter about changes to the way complaints about school admissions arrangements are handled, which said:

“We believe that parents should be given the opportunity to be part of the system that holds schools to account, properly supported and championed by the local authority, the Secretary of State and independent adjudicators”.

At the same time, the Government seek to write parents out of their discipline arrangements by letting schools avoid telling them that their child is in detention. As I understand it, this idea has come from one of the head teachers’ unions, but not the other one. I can tell the Minister what parents want: they do not want this. They want to be respected and informed.

Points were strongly made in Committee that rural schools, if they adhere to their safeguarding duty, will not be able to use this sanction at all. Yet I can reassure my noble friend that children in rural schools will not run amok because of it. There are many sanctions already in the armoury to ensure good behaviour and most schools use them effectively. Most have maintained good discipline to date without this power. I question the competence of any school that feels it needs this power to maintain good order and discipline. Yet, in order to give them this power, the Government may risk the safety of children unless the guidance is clear, unequivocal and powerful. We want only one more case like that of poor Milly Dowler and the Government’s good judgment will be called into question, rightly or wrongly.

This is entirely unnecessary if the Government get the guidance right. Will the Minister assure me that our comments about the guidance, and the strength and clarity that it needs, are taken on board by Ministers and officials? Without that assurance, we will remain with the concerns that I have expressed. I beg to move.

[Baroness Jones of Whitchurch]

My Lords, our Amendment 34 is similar to the one so ably outlined by the noble Baroness. It is a requirement that schools should always give reasonable notice to parents or carers of any detentions and that before going ahead with a detention, they have received from the parent or carer confirmation that they are aware of the detention. Rather like the noble Baroness, Lady Walmsley, has described, we thought that we were eminently conciliatory in our amendment, that it was common sense and would be warmly welcomed by the Minister. Perhaps it still will be.

We return to this issue after a detailed debate in Grand Committee in which we felt there was consensus that this was a common sense position between, on the one hand, an instant response to bad behaviour, while on the other, ensuring that pupil safety is protected. As it stands, the Bill removes a requirement to give 24 hours notice of detention and as a result schools would not be required to give parents or carers any notice at all. We have had a letter from the Minister today setting out new proposals, but those ask teachers only to judge,

“whether it is appropriate to give notice to parents”.

Frankly, we do not think that that is good enough. We recognise that it is usually the case that the nearer the punishment is to the original incident, the more effective it is. However, as a number of noble Lords in Grand Committee recognised, this would potentially create a number of safeguarding issues, which the Minister’s letter attempted to address. It would also potentially damage the relationship between parents and schools and could have a knock-on effect on the success of the school’s broader behavioural policy.

A number of objections remain to no-notice detentions, specifically because of the damage to the school’s relationship with parents. The noble Baroness, Lady Walmsley, has outlined some of those, such as it being impracticable for parents to rearrange children’s transport at short notice when they might have other commitments —other childcare commitments, and so on. There could be unnecessary worry for parents in rural areas especially on dark evenings, when they are anxious about their child’s travel home. There could also be concern if parents think their child is travelling home alone, separately, because they are travelling later, rather than earlier with a group, when they are all leaving school together. There is also the issue that the noble Baroness, Lady Walmsley, raised about caring responsibilities, of which children might not always have made the school aware. Finally, and perhaps most importantly in this catalogue, there is the basic discourtesy to parents which this Bill would represent and which would do little to help schools forge strong partnerships with parents.

When we discussed this in Committee, the Minister expressed some sympathy with the arguments we had put forward, but went on to argue that head teachers already had to produce behaviour policies which were publicised to parents. She also argued that there were existing legal safeguards that protect children's welfare if they are given detention. However, we do not feel that these points adequately address our concerns and they put the onus on parents to object to the school’s actions after the event through the complaints procedure or through legal action. Surely this is making heavy weather over what should be a common-sense policy. To be frank, we have not yet heard any valid arguments against what we are proposing.

The simplest way through is to support our amendment —or, indeed, the amendment of the noble Baroness, Lady Walmsley—which make it clear that schools can organise no-notice detention provided the parent has confirmed that they aware that it is happening. This will provide adequate safeguards for children and ensure that parents are kept in the loop and treated with respect. I hope noble Lords and the Minister will feel able to support this amendment.

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[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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Moved by

[Baroness Jones of Whitchurch]

36: After Clause 7, insert the following new Clause—
“Register of teachers
The Secretary of State shall have a duty to maintain a register of qualified teachers.”

[Baroness Jones of Whitchurch]

My Lords, the Bill abolishes the General Teaching Council for England. However, in abolishing it, there is a fear that the Government are getting rid of some of the crucial features and functions that it has previously carried out. One of those crucial functions is to maintain a register of teachers.

The register and the requirement to be qualified, to which we will come later, are important for maintaining the professional status of teachers. The register of those qualified and entitled to teach in our schools has been successful in enabling employers to make recruitment checks and is valued by employers and teachers alike. Under the Government’s proposals, all that will be held is a database of those prohibited from teaching, which is a very different thing.

The Bill sets out that certain GTCE functions will transfer to the Secretary of State and others will stop completely. In his letter to us of 13 June, the noble Lord, Lord Hill, confirmed the Government’s intention that they will not continue to maintain a register of teachers. I acknowledge that he has subsequently written setting out how the Government believe that the database of teachers prohibited from teaching will be established. To be frank, we do not accept that that meets our concerns.

There does not appear to be any pressure from educationists for the register to be discontinued. Indeed, as I reported in Grand Committee, the ASCL told us that,

“abolition of the GTCE and discontinuation of the registers removes the public’s guarantee that all registered teachers are, ‘eligible, suitable, properly qualified and of good standing’”.

In Grand Committee we were also told that independent schools value the existence of the register. Parents and pupils want high quality, qualified teachers. They want an assurance that the profession is regulated. As I mentioned in Grand Committee, a survey showed that,

“93 per cent of parents want teachers to be regulated, to have an agreed level of training and to be registered with a regulatory body before taking up a teaching post”.—[Official Report, 4/7/11; col. GC 55.]

The GTCE has told us that it carries out something in the region of 676,000 checks on teachers’ registration each year, saving employers significant time and money. At the Committee stage in the Commons, the Minister acknowledged the benefit of a register of people with qualified teacher status and said:

“We recognise the central benefits of providing head teachers and employers with access to a central record of who holds qualified teacher status. We will explore whether and how to provide that in future”.—[Official Report, Commons, Education Bill Committee, 17/3/11; col. 498.]

Our amendment would go further than that and make the Secretary of State accountable for an up-to-date register.

If the register of teachers in England is abolished, we will be left with a farcical situation where up-to-date registers are maintained in Scotland, Wales and Northern Ireland but not in England. Those three nations have seen the sense in keeping the register. What are the implications of England not keeping the information? Will rogue teachers slip through the net? Will the lack of an English register undermine those being kept by other countries, as teachers move between the four nations? What does that say about how England perceives the professionalism of teachers, compared to the other nations?

The abolition of the English register is unnecessary and provocative. All other professional sectors in this country keep a register of those entitled to practise. Some—for example, the General Medical Council—share the information publicly on a website, along with details of any disciplinary action that has been taken against a doctor. Is this not the way that we should be moving if we believe in empowering parents?

The abolition of the register is a retrograde step that the Secretary of State will grow to regret. In the past, the GTC has administered the register, but it does not have to be this body in future. The Secretary of State is equally able to carry out this function. Given that he has been so keen to take on so many additional powers himself, we hope that he will see the sense in also taking on this responsibility. We trust that noble Lords will see the sense of these amendments and hope that the Minister will feel able to support them.

[Lord Puttnam]

My Lords, I rise to support both amendments in this group. I will not go into detail because they have been beautifully set out by my noble friend Lady Jones. I must point out that in passing these clauses we will effectively be officiating at the funeral of the General Teaching Council. It would be quite wrong of me, as a former chairman, to allow that to happen without saying a few words about why it is a catastrophic mistake.

It is not just a catastrophic mistake. I have absolutely no doubt that within 10, 15 or 20 years, this or another Government will come to the Dispatch Box and announce the creation of something remarkably similar to the General Teaching Council. The reason goes to the heart of the paradox that the Government have embraced in their approach to the teaching profession. Unless I misheard the Minister, he referred just now to the emergence of an outstanding generation of leaders, particularly in the teaching schools. I celebrate and support that. However, these are leaders of a very peculiar type: they somehow fall short of being allowed professional status. I am not sure that there is any other area of British public life where that is true: where we seek and promote outstanding leadership but refuse to acknowledge the professional status that ought to go with it.

I do not for one moment defend the clumsy and frankly inadequate legislation that led to the creation of the General Teaching Council. It was not good enough and I and many others suffered from trying to make it work. However, it was a dream and an ambition that was worth while. In rejecting and scrapping it, the Government must acknowledge that they are flying in the face of the ambitions for the profession of every leading educationalist of the 20th century, from Sir Alec Clegg onwards. Every single educationalist sought, promoted and fought for professional recognition for teachers.

There is a very simple line to draw. Skilled, professional teachers lead to well educated children, who in turn give us some hope of a successful society. The key is the skill of the professional teacher. The notion that you can have a successful education system without the wholehearted buy-in and support of the entire profession is a fantasy that all noble Lords in this Chamber would agree is unsustainable. We will not get the profession buying into educational reform and improvement until it comes to understand that it is just that: a profession.

The disastrous mistake that my Government made was in ever contemplating the notion that we could have a professional body that was not paid for by the profession. I am afraid that what is happening here—it is a tough thing to say—is the infantilisation of the profession. We are scrapping its professional status because no one has the courage to say to the profession: “Grow up, understand the responsibilities you have, understand that there is no possible success for this country unless a generation of brilliant teachers emerges, and understand that along with that responsibility comes the need to be professionals—and professionals pay for their professional status”. We will have something like the General Teaching Council. I hope it will be in my lifetime, but it may be after it. Today, I want to register the fact that this is a sad day for the profession, a sad day for the Government and a sad day for the future of education because, as I say, we will have to return to it. When we do so, I hope we will return to it in a more constructive spirit than the manner in which we are scrapping it.

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[Lord Hill of Oareford]

That sounds a very sensible suggestion. I will need to check where we have got to on developing the two databases but that sounds eminently sensible because clearly one would want to make sure that there was read-across.

I hope in light of the reassurance about providing the information, which I accept there has been widespread agreement that we need, including from the party opposite, and about maintaining such a register, that the noble Baroness, Lady Jones of Whitchurch, may feel able to withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, I listened to my noble friend Lord Puttnam with a great deal of sadness as he described the demise of the GTC and what it had originally intended to represent, which was a strong professional standard for the teaching profession and something that they could all aspire to. It is a very sad day that we are here reflecting on its demise. The Minister said very warmly to my noble friend Lord Puttnam that he would not disagree with a word that he had said about teachers’ professionalism, and he went on to say that he hoped that something would “well up” to replace it. That is not much of a response to the profession. In the intervening period, while we are waiting for this welling up, the teaching profession will have been sent a signal that the Government really do not think that it is terribly important and it has got to bide its time before anything appears from the ether to be a standard for it again as a professional body. I echo the comments that have been made about the messages that this sends to the profession.

My noble friend Lord Puttnam went on to say that we would end up recreating the GTC and I think that is really where we are ending up. As we have heard, we have got one list, or maybe two. Somebody is going to have to administer those lists. At a very basic level, if they are not a register then they are moving towards becoming a register, and I acknowledge that the Minister has made some gestures towards what we were arguing. The question that has been raised about whether they will speak to each other is very valid.

I also think that there is a difference between a database of those who are qualified to teach and a register of those who are currently teaching. A register of those who are qualified to teach would very quickly get out of date. It would become a moribund list of people who have potentially not taught for 20 years or more, whereas the idea of a register is as a current, lively thing that enables access to people’s current status. It seems that we have got two poor substitutes for what was a perfectly reasonable arrangement in the first place. More work needs to be done on this.

As for this applying only to England and what happens to the other three nations. I am not sure that I heard the Minister address that issue. Three registers are going to exist in the other three UK nations, and England will be the only one which does not have one. We have made heavy weather of this. It would have been a lot easier if we had just kept the register as well, and be done with it.

I am absolutely sure that the thinking behind this is that the GTCE, for whatever reason, was not in favour with the current Government, and this is why we have ended up where we are. A lot more work needs to be done on this, but I take on board the Minister’s intention to come back and clarify some of these issues. On that basis, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

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Moved by

[Baroness Jones of Whitchurch]

38: Clause 8, page 12, line 26, at end insert—
“( ) Where subsection (1) applies, the employer must provide information about the teacher to the Secretary of State.”

[Baroness Jones of Whitchurch]

My Lords, as the Bill stands, where a teacher may have been dismissed due to serious misconduct or dismissed due to serious misconduct had they not already resigned, the employer,

“must consider whether it would be appropriate to provide prescribed information about the teacher to the Secretary of State”.

The same holds for teachers employed through an agency.

Also, as the Bill stands, the Secretary of State,

“must keep a list containing”—

the names which we have just been discussing, of those—

“to whom a prohibition order has effect”.

But as we have heard, under the Bill there is no requirement for the Secretary of State to maintain a register of qualified teachers. Again, this is an issue which we have just been rehearsing, and on which we require further clarification.

The original requirements that this clause now removes were put in place to ensure that any future potential employers were aware of previous dismissals for serious misconduct. It protected employers from a safeguarding and quality perspective and it protected the pupils in these schools. We believe that these protections are still essential. Our amendments would make it compulsory and not discretionary for employers to inform the Secretary of State about cases where an employed teacher or an agency teacher has been dismissed due to serious misconduct.

If the Bill went through unamended, there would no doubt be a variation in treatment from employer to employer, and the picture held by the Secretary of State on the database that we have been talking about would be incomplete. It would mean that checks by potential employers would not be complete, and the risk of employers unknowingly hiring teachers previously guilty of serious misconduct would rise. This would reduce confidence in the whole referral system. And more importantly, it could put pupils at risk.

In Grand Committee, the Minister argued that the proposals made no change to the duty on all schools to refer any cases of serious misconduct relating to children to the Independent Safeguarding Authority. But this does not appear to provide the safeguards that are necessary. For example, what about other cases of misconduct, for example financial misconduct? And what does the ISA do with the information that would stop the teacher being hired by an unwitting employer in the future?

The proposals are a recipe for confusion, with employers not being clear where to send information on misconduct, and a danger that several agencies will end up holding partial records. Surely the safest way out of this is to require all information to be held in one place—in this case, as we propose, to be held by the Secretary of State.

I know it has been argued that the current system does not work well in that different employers are providing different levels of information to the GTCE. But surely the solution to this is to provide a clear national obligation on employers to inform the centre not to give them even more discretion and therefore make an even more patchy picture of what is happening out in the schools.

This issue is too important to brush aside. It is not about the bureaucratic flow of information; it is about pupil safety and the guarantees that parents rightly expect as regards proper checks being carried out on teachers before they are employed. That can work only if the Secretary of State provides clear leadership to schools and ensures that his department receives a consistent and comprehensive picture of the misconduct issues taking place in them. I therefore hope that noble Lords will support our amendment.

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[Lord Hill of Oareford]

My Lords, I do not think I have that in my back pocket, but I will rootle in my clothing after this and see what information I can find. If there is relevant information which would shed some light on this I will, of course, send it to the noble Lord and circulate it more widely.

I will briefly set out the Government’s overall proposals on teacher regulation to try to put them in context. The GTCE currently deals with referrals for both incompetence and misconduct. I start with that because it touches in some way on the concerns raised by the noble Lord, Lord Knight. There is pretty clear evidence that the approach taken by the GTCE on incompetence has not been working and this is one of the things that drove us to try a new approach. In 10 years, the GTCE barred only 17 teachers for incompetence, and research has shown that employers are often reluctant to make referrals relating to competence to a national regulator. As we have discussed, they have previously only had a nuclear option and this has discouraged heads from making referrals, on the understandable basis that someone who might not be guilty of serious misconduct, but might need to move on and try teaching in a different school, finds himself grinding through the GTCE process. We are therefore seeking to separate issues of competence from issues of misconduct.

So far as dealing with incompetence is concerned, we want to put that into the hands of head teachers. To help them carry out this responsibility, we are also currently consulting on some streamlined arrangements for performance management and capability procedures. So far as misconduct is concerned, we certainly think there is a role for a national regulator, but we also want to try to give head teachers an appropriate level of responsibility, with only serious misconduct cases that may warrant the ultimate sanction—a bar from the teaching profession—being dealt with by the national regulator.

On the issue of safeguarding raised by my noble friend Lord Storey, the point made by the noble Lord, Lord Knight, is partly a response to that. Our proposals will not alter the current arrangements in relation to child protection. The legal duty on employers to refer any issues that relate to safeguarding to the Independent Safeguarding Authority will remain. The noble Baroness, Lady Jones of Whitchurch, asked what happens when the Independent Safeguarding Authority is informed. If a person is barred by the ISA, a flag would appear on their CRB check and a head teacher carrying out a check would then know.

The present regulatory regime requires head teachers to refer all teachers who are sacked as a result of misconduct to the national regulator. The regulator then investigates those cases and imposes one of a range of sanctions depending on the severity of the misconduct. Our basic position is that we do not think that a national regulator should need to administer intermediate sanctions such as restrictions on the use of the internet on school computers. The purpose of the national regulator should be to investigate the most serious cases in order to decide whether a teacher should ever be allowed to teach again. Under the current system, only 10 per cent of referrals have resulted in prohibition orders. In other words, a lot of the GTCE’s time—and a significant amount of money—has been spent investigating cases of a lower order of significance. Similarly, the current system requires head teachers to go through the process of referring a teacher, even if they believe that there are no grounds for barring them from the profession. This is inefficient and risks placing a perverse incentive on head teachers not to confront issues of conduct, because they think it is inappropriate and unnecessary to refer the case to the national regulator.

The amendments effectively seek to reverse the changes we are proposing to make to the role of the national regulator in relation to misconduct. The reason that I am resisting them is because experience of the current system has shown that requiring employers to refer all cases has had two undesirable consequences. First, as I have said, it means that the regulatory system has spent too much of its time focusing on cases that are not sufficiently serious to warrant the teacher being barred, and secondly, that heads have avoided sacking teachers for misconduct because they know it does not warrant an investigation by the regulator and they would not want them ending up on that path.

There is a point raised by the noble Baroness, Lady Jones of Whitchurch, about inconsistency, which I accept. I agree that arrangements for teacher regulation should seek to achieve consistency, but I do not believe that the current duty which she prefers is delivering that. Research published in 2008 found that between 2001 and 2008, nearly one-third of all local authorities had never made a referral for misconduct. Even when we take into account the different numbers of teachers employed in different local authority areas, the variation of referrals among local authorities indicates significant inconsistency in the current system. To reduce that, and to support head teachers in exercising their discretion, we are developing prohibition advice which sets out the kinds of misconduct that should lead to a teacher being barred from the profession. I circulated a draft on 12 October. We are currently carrying out a consultation on the guidance, which we intend to publish following Royal Assent. I would be happy to receive comments on that consultation from noble Lords to see whether they think it will help us to deliver greater consistency.

We are taking those steps and I hope, by explaining the rationale behind wanting to move to a more differentiated system, that even if the noble Baroness, Lady Jones of Whitchurch, does not accept my reasoning she will withdraw her amendment.

[Baroness Jones of Whitchurch]

My Lords, the noble Lord, Lord Storey, made a powerful case on the issue of consistency, and I think that it is the key word in this. We are grappling towards a system that is best going to deliver that consistency. The Minister said that it did not work in the past and that incomplete records were provided by different authorities. My answer to that is that what he is proposing now will make it even more inconsistent and patchy. The draft regulations he has recently sent out show that it will very much be discretionary rather than compulsory for employers as to whether they feed information into the centre. The onus of the wording is that employers “may” decide whether they wish to inform the Secretary of State, members of the public “may” be able to refer cases to the Secretary of State, and the police and the Independent Safeguarding Authority “may” also refer cases to the Secretary of State. The Secretary of State will have a very patchy and inconsistent picture, and I do not know that that helps anybody. What we really want is a resource that future employers can access and in which they will have some faith.

I understand the steps the Minister is taking, but we need to revisit the draft regulations. We need to make a much better attempt at trying to find a consistent and useful resource for future employers. I do not think that this is it, but there is room for further dialogue. On that basis, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.