Education Bill

Baroness Morris of Yardley Excerpts

Monday 4th July 2011 Grand Committee

[The Deputy Chairman of Committees]

My Lords, some of you might have heard buzzing noises, sounding like bumble-bees, coming out of the speakers. That is because some people have got mobile telephones in their pockets and they are too close to the microphones. Could we leave our telephones well away from the microphones or even switch them off for a little while?

[Baroness Morris of Yardley]

My Lords, I support the sentiments behind these amendments, and those in the opening remarks of the noble Baronesses, Lady Walmsley and Lady Hughes. Some of these amendments are quite technical, but there is something underpinning them in that the proposals before us are, first, unjust, and, secondly, not the best way of dealing with a significant problem. In particular, I support the group of amendments that give a right of reinstatement if an appeal should be successful.

I invite the Minister to revisit the Government’s assumptions that brought about this group of amendments. It strikes me as the sort of thing that is great in opposition but which you hope that people have realised is not very good by the time they get to government. Its starting point was something that we can all share: there are children whose behaviour is such that they ought not to be in schools. They ruin the educational chances of other children and make the lives of teachers a misery. Nobody ought to have to put up with that.

There is another starting point that I support: that the head needs control of their own school. They need to be able to set the rules and regulations. Within a framework their writ must run. That is the nature of leadership. Where this went wrong to some extent is that there is a feeling out there that the problem of reinstated children is bigger than it actually is. Somebody will quote the figures at some point, but it is not a big issue. It does not happen often. On most occasions, the tried and tested system which will now be repealed completely has worked well. Schools, parents, governing bodies, head teachers and pupils will on the whole say that it works well. In any structure in a social organisation like a school or society, there will be times when it does not work well, is a bit frayed at the edges and you might want to second-guess a judgment. We should always try to make that better, to improve the law and improve the process.

I do not know how the Government have concluded that this is the way forward from there. What I really want to test with the Minister is that there seem to be two either/or assumptions underpinning this bit of legislation. The first is that heads are always right and pupils are always wrong, which is a case of infallibility all over again. The second is that even if heads are wrong, we must not admit it. If one of those two assumptions does not underpin this set of amendments, I do not know what assumption does. Both are deeply flawed. I hope that I do not have to say more than “heads are not always right”. I have taught where heads have made the wrong decision about exclusion; sometimes there have been sets of circumstances. It has been absolutely right that the child has been reinstated, and the school has not collapsed. Nobody can say that the head is always right.

I agree about the power of the head, but it must be about having a set of rules that the school community and the parents have bought into, and about enacting those rules. I do not agree with this notion of leadership and headship which says, “I can make the rules up as I go along, and if I decide that you have broken them then I can act accordingly”. It is only by giving that sort of power of rule-making to the head that this legislation makes any sense.

Let us say that we do not agree that heads are always right. I sense that where the Government are coming from is that, in order to support heads, we must support their every decision. That is a miscalculation and a misjudgment, and I choose my words carefully. There are heads in this room who will tell me whether I am right or wrong in this but, to be honest, if a head teacher needed this sort of legal protection to keep order and discipline in their school, I would question the quality of the school leadership. A half good head teacher can manage a reinstatement and the house will not fall down. What seems to be feared here is that, if a reinstatement goes ahead, the head will lose control and authority within the school. Good heads do not do that; they manage it, because exclusion is not the only way in which to ensure discipline and good behaviour in schools.

If we make laws to protect weak heads so that they never have to admit that they are wrong, we will not be producing laws that are good for discipline in schools. We need laws that give heads the right to run their schools, and in our utterances and judgments we always need to support heads in what they do. They live in the real world; the children live in the real world; the parents and governors live in the real world, and nowhere else in the real world is someone proven innocent but not given the right to reinstatement.

[Lord Willis of Knaresborough]

I was for many years one of those utterly infallible heads until my governors thought otherwise. Will the noble Baroness comment on the other factor that she has not mentioned? There is a misconception that the organisation that reinstates these children against the wishes of the head and the governors is the local education authority. That is another fallacy that underpins so much of this proposed legislation—that somehow it is pernicious local authorities that want to keep the heads under control. Perhaps she would like to comment on that, given her experience as a Minister and a Secretary of State.

[Baroness Morris of Yardley]

The noble Lord is right. As a not so infallible Minister, I remember the legislation because there was a fear that local authorities would make life difficult for head teachers. If my memory serves me right—and I am absolutely sure that it does on this—there was a requirement in previous legislation to make sure that someone with educational experience was on the appeals panel. Previous legislation has done the mending that needed to be done in terms of the appeals panel. People who have served as Members of Parliament may also know that there has always been a feeling among parents and students that appeals panels lean over backwards to support the schools. If there is a feeling in society, it is not that the appeals panel leans over backwards to exclude the child; it is the other way about. As the noble Lord said, many people on the panels have educational experience and want to support heads. Therefore, the people on the appeals panel are not anti-heads, anti-discipline, anti-order, anti-fairness or anti-justice; they are people who know about education and they try to do a difficult job.

[Lord Knight of Weymouth]

When the noble Baroness talks about heads, I wonder what her thoughts are on the pupil premium that has been introduced by the Government. Interestingly, it motivates heads to admit pupils from poorer backgrounds; and we know that, because of the chaotic backgrounds that some children from poorer backgrounds might have, behaviour might then be an issue to some extent. Does she think that there might be a danger of selection by exclusion, whereby heads take in children to get more money and then, whether deliberately, up front or otherwise, exclude those who are more difficult and damage the education of others?

[Baroness Morris of Yardley]

My thoughts had not gone that far, but my noble friend puts forward a very interesting proposition. I think that perhaps why he thinks that—and why he is right—is because some heads have always sought to manage their admissions through some element of exclusion. There are times when that is right. Some heads, in their first year of taking over a school that has been in very challenging circumstances, have excluded to lay down rules and regulations and to make sure that they can set standards. I understand that, but what the noble Lord suggests would be a terrible thing—and I hope, having put that on record, the Minister will bear it in mind.

I will finish there, because I wanted only to make that brief point. Either assumption is wrong, whether it is about the infallibility of heads or whether it is that when they make a mistake we pretend they have not made a mistake. Worse than that, this is not only unjust and unfair but will do nothing to improve discipline, because the kids and the school community will know that a child was excluded, that the appeal found for them and that the child has not been reinstated. That will do nothing to encourage the school community to support the head. Kids are really good about fairness, and so are parents. The legislation as it has been put to us will not help in that regard.

[Baroness Perry of Southwark]

I have a great deal of sympathy with what the noble Baroness said. I am very pleased that she brought our attention to two factors—that the children who tend to be the subject of exclusion have made the lives of their fellow pupils in their class pretty difficult and seriously hampered their education, and that they have made several teachers’ lives very miserable. There is nothing worse than having a seriously disruptive child in a class when you are trying to teach the rest of the children.

Where I part company from the noble Baroness, on a purely factual basis, is when she says that the clauses in the Bill assume that the head is always right. Of course, they do not. New subsection (4)(c) says quite firmly that the review panel may consider,

“that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review”,

and that it may,

“quash the decision of the responsible body”.

In other words, the Bill clearly assumes that sometimes the head will be wrong.

The other point that the noble Baroness made was about the importance of the head being in authority and being able to control and show leadership in his or her own school. As many of us have said in previous debates and as much research has shown, the authority of the head is paramount in the success of the school. It is not only that the head must be right—and you would hope he or she would be right more times than he or she is wrong—but that the head must be seen to be in control and in authority. If the head is constantly overruled by an outside body, it is very difficult for that to be seen. I agree with that the noble Baroness said—that kids are very quick to recognise what is fair and what is not fair. But we have already established—thanks to the noble Baroness, Lady Walmsley, giving us the figures—that there are very few occasions when the decision of the head has proved to be wrong. Most of the time, the head gets it right, and the excluded child leaves the school a bit more peace and the other pupils more ability to learn than there was before.

My final point is that this does not involve the head alone. It involves the head with the governing body, which will have made the decision as well. There will already have been considerable investigation of the head’s decision. I know that the noble Baroness, Lady Howe, will speak for the authority of the governors. I find it very hard to believe that many cases will go wrong, when the head has made a decision on behalf of a teacher who wishes to exclude a pupil and if that has been reviewed by a governing body. Of course, some will, and the review panel has the power to say so, to stand the decision on one side and to ask the head to go again. I disagree with the noble Baroness when she said that, when the review panel sends it back to the school, it will always repeat what it said before. I do not think that that is so. I think that after the very solemn and rather frightening business of being found to be wrong by an external review panel, the school will certainly think again.

--- Later in debate ---

[Baroness Morris of Yardley]

My Lords, the noble Lord is right. The power to innovate gives schools the right to ask whether they can be covered by this piece of legislation. You do that in advance; you do not do it because you want to keep a child in that night. I support what the noble Lord is saying, which is that the Government are making the case that only a small number of schools will use this power. If it is so important to them, looking across the array of legal powers they want to take themselves, if they think the most important thing is that they can keep children in on the same day, the power is there to do it. The noble Lord is absolutely right. The point is that this legislation leaves so many loopholes and so many risks of children not being safely looked after. We do not need to take that risk. If a school thinks it is important to them, they can apply for the power to innovate in advance. My understanding is that they have the power for five years.

[Lord Hill of Oareford]

I am the Minister who is in receipt of applications for powers to innovate. I have not been overwhelmed over the last year and a half by applications for powers to innovate. It may be there but the point is that for it to be there it is a more complicated process than it ought to be. Every school would have to apply individually. They apply to officials and officials put up submissions and Ministers decide and opine and then the power to innovate, like Zeus, is given. It is time-limited.

As a way of dealing with the issue, if one accepts that this is a permissive power, as it clearly is, and if you say to schools that all those that might want to use this power have to go through the rather cumbersome and protracted process of applying for a power to innovate, no one will go through the process of applying. They will say that this has been made difficult for them, whereas something that is simple, which gives them the opportunity and which applies to all—to choose either to use or not to use—with safeguards in place, seems a more rational way than making every school try individually.

--- Later in debate ---

[The Earl of Listowel]

My Lords, briefly, I support what the noble Baroness, Lady Hughes of Stretford, has just said. It seems eminently reasonable to support such a mode of working—of sharing the burden of the most difficult children among a group of schools. From speaking to head teachers, I have not experienced that model. However, I have spoken to the head teacher who was responsible for something called the Greater Manchester Challenge in the Greater Manchester area. It gathered together teachers and head teachers in Manchester to support each other. I understand that there is something similar in Greater London. This, perhaps, was one of the strengths of the previous Government. One of the good things that they brought forward was a mode of encouraging heads to work together to produce better outcomes for children.

One sees that the new coalition Government are moving in the opposite direction. There is a lot that we will support in that. Perhaps we can all support greater autonomy and respect for individual professionals, but I would be very sad if, in the process of that move, we went from one extreme to another and we lost some of the good things that came out in the years of work that the previous Government put in. To my mind, it would be very sad to lose that co-operation and recognition that some problems are bigger than any one school can deal with.

The Minister may say that there are new modalities in developing these sorts of collaborative approaches. I recall what his noble friend Lady Ritchie said in the previous Committee session when she expressed concern, as the person responsible within the Local Government Association for the safeguarding of children, that the academies programme has given rise to concerns about fragmentation. There is a swing in the pendulum from one extreme to another. Some really good things came out from the previous swing in the direction of collaborative working, and I should be grateful to the Minister if he can reassure the Committee—as I am sure that he will—that he recognises the importance of schools working together to deal with these issues, and say what new mechanisms he is helping to bring into place to make it work for children in the future.

[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.