Education Bill

Baroness Walmsley Excerpts

Tuesday 28th June 2011 Grand Committee

[Baroness Warnock]

I very much support the amendment for two reasons. I endorse all the things that have been said. First, I hope very much that “foundation years” can be incorporated in the Bill, because it would be useful to have a way of referring to children between nought and school age. Therefore, we might usefully take over that phrase and use it in the Bill. Secondly, and probably much more importantly, the amendment would give a chance for parents and local authorities to make contact with one another. If the local authorities have the duty imposed on them that the amendment suggests, they will know from the outset the position of each child and will be able to co-operate much later on. If the Bill is anything like what it is now, there is a danger that the influence of local authorities will be fragmented, but the amendment would be a start for a local authority to get involved right from the beginning.

[Baroness Walmsley]

My Lords, we on these Benches very much support the principles of what the noble Lord, Lord Northbourne, is trying to achieve. I am quite sure that this Government will not sweep under the carpet the most important and powerful arguments made by Graham Allen and Frank Field in their excellent reports. I very much look forward to hearing the department’s response to the need for much more early intervention, which I believe will come along the track before very long. Indeed, the Government may decide that another legislative vehicle, which may be before us next year, might be more appropriate for putting forward what the noble Lord, Lord Northbourne, is seeking to do. I absolutely agree with him about the vital importance of the early years, about parents as first teachers and as carers of the child, and the importance of supporting those parents in doing what we all know is the most difficult job in the world.

[Lord Ramsbotham]

My Lords, I, too, support the noble Lord, Lord Northbourne, in this very important amendment. I also support his suggestion that this will be followed by more substantive amendments on Report.

Clause 1 is more about who things should be done to than what should be done. Here I declare an interest as the chairman of the all-party group on communication and language skills, which has been campaigning for years to try to get every child assessed to see that, in the words of the noble Lord’s amendment, children are ready,

“to enter school on reaching school age”.

I would like to see guidance in the Bill on what assessment should be received by each child to ensure that they are ready and who is responsible for doing it. One problem I have found when trying to get this assessment done is who pays. The people who do the assessment come from the Department of Health, but it is the Department for Education which is putting this through. Some people at the Department for Communities and Local Government are involved, while some are from the Ministry of Justice. Who is going to do this?

The best advice is contained in the excellent report published the other day by Dame Clare Tickell. In paragraph 3.22 of chapter 3, which is entitled “Equipped for life, ready for school”, she recommends strongly,

“that the Government works with experts and services to test the feasibility of a single integrated review”,

at age two to two and a half. That is excellent advice, which I hope will be taken up. Armed with that, then the work can be done to see what needs to be done to make certain that people are ready to back up the tone and the good sense of my noble friend’s amendment.

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[Baroness Walmsley]

My Lords, I want to pick up the point about staff qualifications. Many of your Lordships will be aware of the EPI report, which was a very rigorous piece of research on the quality of early-years education and its effect on young children. It clearly found that high-quality early-years provision can have enormous personal and financial benefits all the way through the lives of the young people concerned but that very poor-quality early-years provision does not produce any benefit at all and may even have the opposite effect. I am very keen on evidence-based policy-making. That is why we on these Benches have always promoted high-quality early-years provision. Even if the Minister is not prepared to accept any of the amendments that we are discussing, I hope that he will be kind enough to say something about what the Government propose to do to increase the quality of this provision, particularly as regards the qualifications of staff working in early years.

[Lord Peston]

My Lords, I support my noble friend’s amendments, I note—whether with glee or cynicism, I am not sure—her desire to include this provision in the Bill. I have been in this House for 25 years and if I had a tenner for every time this matter had come up I would be a very rich man indeed. I am sure that the Minister has the word “Resist” on a piece of paper in front of him, and that that was done independently of party considerations because we know that all Governments are perfect and never get anything wrong when drafting legislation. However, I still naively believe that one can improve legislation in your Lordships' House so I totally support my noble friend’s desire to include this provision in the Bill.

Leaving my cynicism mode and getting on to more substantive matters, I note that the word “disadvantaged” appears here. We are not going to remove disadvantage from our society via an education Bill, but I firmly believe—that is why I became an adviser and a politician—that one can improve the society in which one lives via one’s contribution to your Lordships' House. That does not mean that all the disadvantaged will suddenly cease to be disadvantaged, but if we go down this path some of them will cease to be so, and that will be highly productive, both socially and economically, because to the extent that we can improve some young people's lives, they will become the parents of the future and will in turn improve their children's lives. One should not assume that this matter is just about using up resources; we should take a longer view and realise that we will be creating resources by going down this path.

It is broadly my view that if we can achieve anything, it will be a step forward. Although we can nitpick—I am an expert at that if I am in the mood—that is not what we are here for. We are here to make a contribution so that the Bill can be made better and, more importantly, so that the world in which we live can be made a little better.

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[Baroness Hughes of Stretford]

I thank the Minister for a very detailed response to these amendments. I also thank other noble Lords for their contributions, particularly those of the noble Lord, Lord Laming, and the noble Earl, Lord Listowel, on disengaged parents, the importance of qualifications, how that relates very clearly to quality, and how quality is the key factor that makes the biggest difference to children’s experience of a setting. That is all very positive and I am grateful to them for their comments.

I am sorry that the noble Lord, Lord True, felt that there was a conflict between the various amendments in the group; perhaps I did not explain them well enough. I did not perceive that conflict, but perhaps when we return to the amendments on Report—I think that we will do so—I can iron that out for him.

I want to comment specifically only on the Minister’s response on Amendment 5, which would enshrine in legislation current provision for three and four year-olds. I am very grateful to my noble friend Lord Peston for his comments in that regard. Including this provision on the face of the Bill would consolidate the progress that has been made. I am not requesting that it should be included simply to nail it down; the measure would indicate powerfully to parents and to the private and public sector early-years providers that any future Government who rolled back the provision would be subject to the full scrutiny that is involved in changing primary legislation. As the Bill stands, the regulation that enables provision for two year-olds to be extended also allows the entitlement for three and four year-olds to be reduced if a Secretary of State chooses to do so. It is a lost opportunity not to make clear to parents and providers—

[Baroness Walmsley]

Can the noble Baroness cite any single word that she has heard from this Government which suggests that that might ever be our intention?

[Baroness Hughes of Stretford]

No. I made it very clear that I do not doubt the commitments that have been expressed both here and in the other place. I said in my opening remarks that while these Ministers and this Government can speak for themselves, clearly they cannot speak for any future Government. Therefore, to capture this entitlement for parents and children in legislation would protect it and send a signal to both parents and the private and public sector providers that it will take any future Government something other than the diktat of the Secretary of State through the negative procedure of secondary legislation to remove it, which would be allowed under the Bill as currently drafted.

The Minister said that he felt the current wording of our amendment might be too restrictive and would not allow the Government the enormous flexibility they would need if parents were unable to accept the offer of 15 hours over 38 weeks. However, it should not be beyond our wit to find a formulation which would allow us to put the offer in the Bill and make it subject to any subsequent provisions for increasing flexibility. I should like to talk to the Minister between now and Report to see if we can find a way of achieving the spirit of the amendment in a way that does not restrain any future thoughts on flexibility.

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[Baroness Perry of Southwark]

My Lords, I support the amendments. We are not talking here about some new provider on the block with bright ideas. Montessori is an established, tried and true, long-lasting provider of education. It is of a high quality. In days long ago when it was inspected regularly by HMI, inspectors always came back with very high-standard reports of what was going on. Montessori also has its own system for training its own teachers and staff, which again is of a very high quality and thorough, and produces people who are well versed in the Montessori way. There are many people of all ages, some probably now in their 80s and 90s, who have been through the Montessori experience and can testify to its importance in their own lives. I hope, as others have said, that the Minister will at least give a warm response to the amendments.

[Baroness Walmsley]

My Lords, I was not able to support the last group of amendments of the noble Lord, Lord True, because I tended to agree with the noble Baroness, Lady Hughes, about the danger of a two-tier system. However, I am very pleased to be able to support this group of amendments enthusiastically.

My knowledge of Montessori is that my grandchildren went to a Montessori nursery. Indeed, my daughter-in-law, their mother, herself already highly qualified with a PhD in biochemistry, was so impressed by the system that she started to train as a Montessori teacher. This delighted me. We need highly intelligent and highly qualified people in the nursery sector and I thought that was excellent.

If we want to offer parents a wide choice of early-years provision we ought to do everything that we can to encourage proven, high-quality systems such as Montessori and Steiner and, if necessary, make them special cases.

[Lord Elton]

My Lords, what my noble friend’s amendments seek to do is not only desirable but in line with the Government’s policy. The Minister’s problem is not whether or not to agree but how to set about obtaining that end, which may not be as proposed in the amendment. However, the issue is so important that if it is in doubt it should be protected, if not in statute then in supplementary legislation. I hope my noble friend will be able to give reassurance in that direction.

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Moved by

[Baroness Walmsley]

12: Clause 2, page 3, line 37, after “the” insert “properly trained”

[Baroness Walmsley]

My Lords, in moving Amendment 12, I wish to speak also to Amendments 19, 27 and 32 in this group. My noble friend Lady Jolly will speak to Amendment 20.

Clause 2 extends the power of teachers and heads to search pupils and repeals some of the safeguards in legislation regarding searches in schools. These searches constitute a significant intrusion into children’s privacy which is protected under the UN Convention on the Rights of the Child and under the Human Rights Act. Therefore, there is an enormous onus on the Government to justify them.

I welcome the Government’s commitment to give due consideration to the provisions of the UN Convention on the Rights of the Child when making new policy and legislation. I urge the Minister to ensure that when this Bill leaves your Lordships' House it complies fully with this important convention. I am particularly concerned with regard to Article 28(2) of the convention which states that we must,

“ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention”.

When the powers to search were extended in 2009 to include alcohol, drugs and stolen property, they went ahead without any published evaluation of how the previous powers were working. This is happening again, which causes me great concern. We need a thorough review of these powers with sufficient detail for us to determine whether any particular groups of children are being searched more frequently than others. It is essential to avoid any possible discrimination in the use of these powers.

The first group of amendments concern appropriate training. Amendments 12 and 19 seek to ensure that any member of school staff expected to search a pupil has had appropriate training before attempting to do so. My intention is to highlight the importance of proper training in such matters. When I was a teacher, I would not have dreamt of attempting such a thing without proper training, and I am sure that your Lordships would have felt the same in my position. Many teachers are currently reluctant to use the powers that they already have to search pupils, and would not have the confidence to do so even in the circumstances where it may seem necessary to prevent imminent harm to others unless they had confidence that they knew what they were doing. No teacher or member of staff should be expected to search a child without good-quality training, especially since current legislation allows them to,

“use such force as is reasonable in the circumstances”.

Training is essential, particularly in delicate situations where the pupil has special educational needs or has particular cultural or religious concerns or is of the opposite gender from the person carrying out the search, or there is no other member of staff present—although noble Lords will know that I do not approve of either of those last two situations.

It is not just about training. Information about the child is important too. How is a child who has been touched inappropriately or even abused going to react if someone approaches to search their person? That could escalate a fairly low-level problem into something violent and critical. Training should ensure that searches are conducted in such a way as to avoid harm to the child being searched, as well as to avoid unfounded allegations of improper behaviour by the teacher or lecturer.

Amendments 27 and 32 cover the same matters relating to searches in FE colleges. It is true, however, that most colleges have specially designated and trained security staff who would probably be called in to conduct a search if necessary. There are particular issues in colleges that may need to be addressed differently from searches conducted in schools, as many of the students may well be over 18. The current DfE guidance that was published in 2007, called Screening and Searching of Pupils for Weapons: Guidance for School Staff, mentions colleges only briefly, on page 4, which is insufficient.

Further training and advice are essential in order for staff to understand the powers under this clause. Such training should ensure that searches are conducted in such a way as to avoid harm to the child being searched, as well as to avoid unfounded allegations of improper behaviour by the teacher or lecturer. In colleges there may be only a very few years between the searcher and the searched. Such training could also usefully include managing potentially inflamed situations, identifying particular cultural or religious sensitivities, de-escalation techniques and risk assessment.

I know that the Association of Colleges is not keen on my idea of statutory training; it has said so. It says that unqualified cowboy operations will be set up to provide so-called training and might give teachers and lecturers an unfounded sense of confidence. My answer to that is that the college principal has a duty to ensure that all CPD is of good quality by getting recommendations and feedback and by checking qualifications. The association suggests that bad things can happen if people have been inappropriately trained. My opinion is that bad things can happen if people are not trained at all. We should put this requirement in the Bill. I beg to move.

[Baroness Jones of Whitchurch]

My Lords, as a number of amendments are in our names, I thought that it would be sensible to get up at this stage and speak on Amendments 15, 18, 26, 29, 30 and 31. In introducing these amendments, I should make it clear that we understand and support the Government’s stated intention to support schools in improving discipline. As noble Lords will know, the previous Government took the first steps towards bringing in new powers to help teachers enforce discipline, and at that time they were broadly welcomed by the profession.

Our concern with what is being proposed today is that, although on the face of it the Bill seems to build on the legislation, it takes away the important checks and balances that had been built in to protect both pupils and teachers. It remains unclear why proposals to extend those powers have been put before us.

Many of our comments echo those of the noble Baroness, Lady Walmsley. Amendment 15 seeks to ensure that staff undertaking searches are appropriately trained to search all pupils, particularly those with special educational needs and disabilities, in a way that maintains the dignity and rights to privacy of everybody, in order to foster a school environment of mutual respect. Amendment 18 also makes it clear that searches should be carried out by a member of the senior management team. In the Commons evidence that we read, this was described as good practice by a number of head teachers.

The Children's Society and the NUT, among others, made a compelling case for staff doing searches to be trained and given advice on the effect of searches on young people, including the effect on their self-esteem and confidence. In addition—I am sure that we will hear more about this—Ambitious about Autism told us that staff require proper training to carry out safe searches on children with autism so that they understand the children's potential issues, for example around physical contact. The Children's Rights Alliance for England reminded us that searches can be very invasive and unpleasant experiences, causing children embarrassment, anxiety and humiliation. In addition, as the noble Baroness, Lady Walmsley, said, children with a history of physical or sexual abuse have a very different experience of searches; there is a need for training in that respect. It is also vital that staff carrying out searches on children with special educational needs and disabilities have an awareness of those issues and make reasonable adjustments for those needs.

We are concerned also that the new powers could put staff undertaking searches at risk. For example, the NUT highlighted a concern that, without training, teachers could be vulnerable to unfounded allegations of “improper behaviour”. Again, this underlines the case that we made earlier for searches to be carried out by someone of sufficient seniority that their intention and authority cannot be brought into question when the searches are carried out. This may be best practice in many schools, but the amendments build in safeguards for all pupils, particularly the most vulnerable, to ensure that their needs are recognised and that they are treated with respect.

Finally, Amendment 26 would require schools to keep a written record of all searches, including equalities information on the SEN, ethnicity and disabilities of the pupils being searched. Just as the police powers of stop and search were found to be disproportionately targeting certain ethnic groups, there is a risk that the same thing could happen unintentionally in our schools. Without proper records, we will not be able to monitor and follow up on the consequences of those trends. This concern has been highlighted by the Runnymede Trust, which stated:

“Runnymede is concerned that this power could result in disproportionate numbers of Black children being searched. If Black pupils are searched more than other pupils or feel unfairly targeted, trust may be undermined, potentially leading to more negative behaviour in the classroom”.

The amendment will enable that record to be kept and research to be pursued to follow up on it, both within the school and more widely, to make sure that unintended consequences do not arise. It will enable us to ensure that minority ethnic groups are not disproportionately targeted, and that groups such as pupils with SEN or disabilities are also not disproportionately targeted unintentionally. I hope that the Minister will acknowledge the sense of the amendments and the comfort that they might bring by protecting the interests of vulnerable groups who are concerned about how the new powers will operate.

Other amendments to Clause 3 in this group—Amendments 29, 30 and 31—mirror the amendments that we laid to Clause 2 but relate to further education. The same arguments apply in terms of checks and balances, but as the noble Baroness, Lady Walmsley, said, because of the potential narrowing of the age gap it is particularly important that teachers are trained to treat the students with respect and be aware of their vulnerabilities.

I have one final quick comment. I am aware that a guidance note is in full consultation from the department at the moment on the powers to search without consent. I am sure that the Minister will say, “Do not worry, because this document is being consulted on”, but it increasingly gives us concern that we are being asked to make legislation now, not further down the line when some consultations will come to fruition. It is asking a lot of us to trust that those consultations will come out with the right answer. We need to ensure that we get the legislation correct now, when we have the chance to do so.

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[Baroness Walmsley]

It may be convenient for the Committee if I answer the question just posed by the noble Lord, Lord Sutherland, about Amendment 20. I think that was a slight misunderstanding of the amendment. My noble friend meant that no teacher other than the security staff could be required—in other words, forced against their will—to carry out a search if they did not want to.

[Baroness Benjamin]

My Lords, I support several of the amendments in this group but would like to focus on black and ethnic minority children. If you ask any black young man how many times he has been stopped and searched in the streets, you will find that it has been more times than his white equivalent. In some cases, there is a just reason to do so and some young people warrant the action of being searched. This does not mean that everyone should be categorised in the same way. Sometimes there needs to be a sympathetic approach towards young people who have what can perhaps be described as a “street attitude” or come from backgrounds where there is little or no parental or family support or guidance. There needs to be understanding of what might be going on in that young person’s life to make them behave in a certain way.

The same can be said about young people in schools today. Stop and search has become an accepted attitude towards many young black children and young people. Sadly, many of them will most likely grow up having to face the same ordeals and indignities as generations before them. This leads to young people feeling worthless, disillusioned and having an anti-social attitude—they act in the way that they believe they are expected to by society. Many look to gang culture to feel safe, accepted and important. It is a case of safety in numbers in order to survive. Those misguided young people need our help and understanding. They do not need to be condemned and vilified.

As touched on by the noble Baroness, Lady Jones, earlier, many are concerned that the power of members of staff to search pupils could result in disproportionate numbers of black children being searched. If black pupils are searched more than other pupils or feel unfairly targeted, trust may be undermined, potentially leading to more negative behaviour in the classroom. Evidence shows that black Caribbean boys in particular are disproportionately excluded from school and routinely punished more harshly, praised less and told off more. Explanations for this cannot be attributed solely to things like culture, class background or home life, and government research concluded that teacher’s attitudes—sometimes subconsciously—towards black children can be a contributing factor.

Given the overrepresentation of black Caribbean children in other areas of discipline, it is likely that they will be disproportionately searched under this new power. As the Runnymede Trust and others have argued elsewhere, institutions are required by law to assess the impact of their policies upon individuals from different ethnic backgrounds under the Equality Act. Given this legal requirement, I plead with the Minister to make sure that careful monitoring takes place of those searched in schools and action is taken to decrease any arising disproportion.

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[Baroness Jones of Whitchurch]

My Lords, I want to make just a couple of quick points, given the lateness of the hour. The first is that the draft guidance that seems to be floating around, the status of which I am sure that the noble Lord will know better than I, explicitly states under the heading of training for school staff that there is no legal requirement for a head teacher or authorised member of staff to be trained before undertaking a “without consent” search. That is a statement of fact because there is no legal requirement, but if you are issuing guidance, would it not make sense to say something like, “But we think it is a jolly good idea”? It is almost a prescription not to bother to do the training. I may have the status of the guidance wrong, but my point is worth taking on board.

The second point concerns the final issue that the Minister raised, which was about keeping records. There was a contradiction with what a number of noble Lords said about the need for consistent record keeping so that Ofsted can check what is going on and the department can have an idea of whether there are unforeseen consequences of the searches. We all want to know what the big picture is, and we can only do that if we have consistent records. The noble Lord said that we should trust schools to keep their own records, but there is a contradiction here—and also with the requirement under the Equality Act that he talked about. I will return to the issue about what schools should be required to do in terms of keeping records to comply with fairness and meet the requirements of the legislation. I do not think that we have fully fleshed that out.

[Baroness Walmsley]

My Lords, this has been an excellent and wide-ranging debate. I thank all noble Lords who contributed, and in particular the Minister for his reply. Before I make a few comments, I will make one correction. I mentioned that it was the Association of Colleges that was against the statutory requirement for training: I meant to say that it was the Association of School and College Leaders. I am sure that Hansard in its usual inimitable manner will correct that for me.

I will pick up on a few disparate points from the debate. First, a number of noble Lords raised the issue of what would happen if a child were wielding a knife. I believe that a teacher or anybody else in the room would have a common-law right to intervene to protect themselves or any child there: they would not need these searching powers. Anyway, you do not need to search for something that is in full view.

I thank the Minister for his assurance that no teacher will be pressurised into doing a search. I am aware that this was in previous legislation. However, the Government are repealing a number of checks and balances in previous legislation, so I was a little concerned that they might be repealing that.

I very much agree with the points made by my noble friend Lady Benjamin about stop and search. She made her points very passionately. These are things that we must bear in mind. I asked for a very detailed review so that we can make sure that no discrimination is occurring. Of course, if the incidents are reported and recorded, as the noble Lord, Lord Sutherland, suggested, it will be very easy to collect the information. I know that the Government are trying to ease the bureaucratic burden on schools and are not implementing the duty in the previous Bill to record all incidents, but incidents of this nature are really quite serious and perhaps it should be suggested in guidance that best practice should dictate that these sorts of things are recorded under the school’s judgment.

[Baroness Hughes of Stretford]

Is the noble Baroness aware that in some parallel situations, for instance in children's homes, a written record is required? One can only think that, if it is required there, perhaps it should be required in schools.

[Baroness Walmsley]

I quite agree with the noble Baroness. We need to have another debate about consistency in the way that we deal with children across the piece.

The noble Lord, Lord Elton, suggested that searching might be a preventive measure. I do not think that this legislation would allow a whole class to be searched as a preventive measure. I may be wrong about that, but I think that it would not.

On the issue of how to search a child safely, I am not suggesting that there should be any kind of qualification—simply that the head should be satisfied that the staff have had appropriate training. The Minister pointed out, when he was talking about not forcing a member of staff to do the search, that the head would have to designate who could do these searches, and I accept that. However, we are making a number of assumptions here about what the head would know about the competence of the teacher. That is why we need something either in the Bill or in statutory guidance to say that, in designating teachers to do that sort of search, the head must assure himself or herself that that person is competent to do that. Without our being too prescriptive about the sort of training, it really is up to the head or principal to ensure that the training is adequate and appropriate. That would probably satisfy me.

The noble Lord, Lord Knight, who is not in his place, suggested that if the CPD was expensive the head would not want to do it, and therefore all the legislation would be redundant. Nothing would make me happier than that. I point out that it was his Government who started down this slippery slope in the first place.

I pass on to the Committee a point that my noble friend Lady Sharp made; she is no longer in her place but was here a little earlier. She has been doing a report about FE colleges and has been visiting a great many of them recently. She said that the proposal in Amendment 30, in the name of the noble Baronesses, Lady Hughes and Lady Jones, would be inappropriate in a big college because its senior management would not want these powers and would very willingly delegate them to the security staff or to other senior staff in the college. The powers in Amendment 30 would not actually be welcomed.

As I said earlier, I would, reluctantly, not oppose these measures lock, stock and barrel. However, it is important that we get this right, which is why I have tabled a raft of amendments about training, gender, witnesses and various other matters that we will come to the next time we meet. With those words, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.