Baroness Walmsley
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Baroness Walmsley
Baroness Walmsley
I shall speak also to Amendments 21, 22, 23 and 24 in my name which are grouped with Amendment 13. We ended our session on Tuesday by reaching Clause 2. We had a very interesting debate about whether there should be statutory training for any teachers who are considering doing a search of a child. This and the subsequent group of amendments refer to other aspects of the measures which extend the powers to search. This group is about tightening up what can be searched for and for what reasons; the next group is all about whether you can search alone and children of a different gender.
Amendment 13 probes issues concerning the burden of proof and highlights the potential problems that arise for schools as a result of the expansion of the powers. I am sure that head teachers and other members of staff would wish to have that power clearly defined and be without fear of contravening the Human Rights Act or prosecution for an offence against the person. Teachers are not law enforcement officers and they have no reason to risk assault upon them by insisting on searching a pupil who is capable of a violent reaction. Equally, few teachers will wish to use the power if they feel that it will jeopardise their relationship with pupils and generate a climate of suspicion in their school.
A simple Google search of the phrase “primary school rules” illustrates the need for more careful consideration of these provisions. They vary enormously. I wish to insert “reasonably” so that the Bill will say that a search can be made for,
“any other item which the school rules reasonably identify as an item for which a search may be made”.
Some school rules do not allow toys to be brought into school, but it would be quite disproportionate to body-search a child for a little soft toy brought in for comfort. As the Bill is not clear on what exactly is meant by school rules, many schools might feel that they need to revisit their rules, such as: sweets, cans and glass bottles are not allowed in school. When they do so, I would remind them of their duty to consult the pupils. In any case, rules are more likely to be followed if the children have been involved in their drafting and have signed up to the need for them.
The Joint Committee on Human Rights has called on the Government to issue guidance which makes it clear that,
“only items capable of being disruptive to teaching or learning, threatening to the safety of pupils and teachers, or which breach criminal law can be identified in school rules as items for which searches of pupils can be made”.
That is the sensible approach, and inserting “reasonably” indicates that schools must not go over the top.
Amendments 21, 22 and 23 were suggested by the JCHR in its report on the Bill. The committee criticise the very wide powers to examine and erase data or files on a mobile phone or other electronic device. We all want to give heads and teachers the powers they need to keep discipline and to prevent bullying, which is why I do not oppose the extension of these powers. It is clearly legitimate for a teacher, if he has reasonable cause for suspicion, to see whether there are any files on a confiscated phone that could be used for bullying or distribution of images that the subject of the images would not want the world to see—even pornography. However, we need checks and balances. The JCHR points out that there is nothing in the Bill to restrict the scope of the powers in relation to the purpose for which the power is to be exercised. That should be linked to the reasons for the search and the justification for the suspicion that an offence has been, or is about to be, committed.
Given the potential for serious interference in the pupil’s rights to respect for a private life, the JCHR proposed Amendments 21, 22 and 23, about which I questioned the Minister at Second Reading. In the absence of an answer, I have tabled them myself. The amendments make it clear that it must be established that the device is likely to be used for something that is either unlawful or contrary to the school rules.
I tabled Amendment 24 because I remained concerned about the power to erase files. There may be all sorts of things on the phone that are very private to the family—things that the family would rather the school did not know. There may also be things on the phone that the pupil may not want the school or his parents to know—for example, that he or she is gay. Let us bear in mind that the pupil and his phone may be entirely innocent. Indeed, pupil A reporting to a teacher that pupil B has some questionable images on his phone may, in itself, be an act of bullying by A on B—trying to embarrass Bill or get him into trouble. Pupil A may want to expose the fact that B is gay. I would call that homophobic bullying, and this Government have made clear their determination to stamp that out. I have tabled Amendment 24 to ensure that guidance includes consideration of the private life of both the pupil and his family, and the circumstances in which it is appropriate to involve parents in the deletion of files.
I ask my noble friend the Minister whether the Government will conduct a review of the existing search powers—as was recommended by Sir Alan Steer to the previous Government, but not carried out, before they extended the powers. We need more post-legislative, as well as more pre-legislative, scrutiny. Will the Government publish draft guidance relevant to the search powers before Report stage? Will such guidance be statutory? Will the Government accept these amendments? I beg to move.
Baroness Jones of Whitchurch
My Lords, I support the amendments of the noble Baroness, Lady Walmsley. I shall speak also to our Amendment 25. As has already been identified, under the previous legislation school staff already have the power to search for and seize from pupils prohibited items, including weapons, alcohol, drugs and stolen goods, and we are very conscious of the sensitivities in extending those powers.
Therefore Amendment 25 places on the Secretary of State a requirement to give more explicit guidance as to what should be included in the school rules, and on the items for which searches can be made. This amendment would very much enable some of the concerns of the noble Baroness, Lady Walmsley, to be followed through. I also echo her point that if guidance were to be produced, it would be helpful if it were in the form of draft guidance on which we could all comment.
In addition, there is currently a statutory definition of school rules in maintained schools, but there is no statutory definition of school rules in independent schools, which will, in due course, include academies and free schools. Therefore, this underlines again the case for the Government to consider and advise very carefully on what can and cannot be banned under school rules for all state-provided schools. As the noble Baroness, Lady Walmsley, has mentioned, this was picked up in the report of the Joint Committee on Human Rights, which said:
“There is a risk of the new provision falling foul of that requirement”—
to protect pupils—
“unless the new power to search is circumscribed in some way by reference to the purpose for which such a search may be made”.
The noble Baroness, Lady Walmsley, quoted some useful paragraphs from the report, but that one is also helpful.
When we debated this on the first day in Committee, a case was well made on the issue of mobile phones. For one person a mobile phone is some sort of weapon or something that can be used in a derogatory way; for others it is a teaching aid. We need to be clear about pupils’ reasons for carrying mobile phones in school. In some cases it is a link to important caring responsibilities and so on. Therefore, we must be very careful about proscribing some of these things and the wording that is used.
We have seen the 15th report of the Delegated Powers and Regulatory Reform Committee, which was handed out as we came in. It draws the attention of the House to the fact that the department’s own memorandum on its delegated powers,
“does not explain why it is thought appropriate that the list of articles in section 550ZA(3) that may be searched for … should in future be capable of being supplemented by the school in question, apparently to include any kind of article whatever”.
Again, the Delegated Powers Committee questions the extra powers that the Government are trying to give themselves without being explicit about what the articles should be and what it is appropriate to take into a school. Therefore, I hope our Amendment 25, which makes it necessary for guidance to be produced by the Secretary of State on what is and is not to be prohibited by school rules, is a common-sense measure. I hope the Minister will agree and that he and noble Lords will feel able to support the amendment.
Lord Hill of Oareford
I believe that that could be done at the moment. That would not therefore be a change, and overall we want to give schools discretion.
Baroness Walmsley
My Lords, this has been an interesting and illuminating debate. Before dealing with the issues debated today, I thank my noble friend for his comments on our debate on Tuesday. He told us that there will be advice in guidance from the Government to head teachers that they should consider the level of training of the teacher who is designated to be allowed to search. That is all very well, but what happens if they do not do that? What happens if the school designates a teacher who has not had adequate training? What if someone is hurt and the teacher in question is not trained? Would my noble friend like to answer now or would he prefer to come back to me on that?
Baroness Walmsley
I thank my noble friend. A number of points have been made in the debate today, and I absolutely agree with those who have emphasised how important it is that schools consult parents and pupils when setting their school rules. Indeed, I believe my noble friend Lady Sharp and I were slightly influential in getting that duty to consult pupils into the Education and Inspections Act 2006, if my memory serves me correctly.
It is incredibly important that pupils and their parents understand what the school rules say. It is quite right that the Government do not seek to specify exactly what a school bans and what it will search for if that ban is flouted, but the rules should state why the school is going to ban the items that could be used. The school should ban only the things that could interfere with teaching and learning or that could be used to commit an offence, cause disruption in the school or be otherwise unlawful. Schools should not go over the top and be silly about what a pupil might want to bring in.
As for phones, my noble friend Lord Storey, who the Committee will know is still a practising head teacher, has reminded me that schools already deal with these matters in their own way. Most schools have a mobile phones policy—indeed, many local authorities such as my noble friend’s own authority in Moseley have one—and many schools are sensible enough to allow children to bring in a mobile phone if the parents feel that they would like the child to have it for their own safety or on the way home in case they have a problem with their transport and need to contact the parents. However, they insist that the phone is either handed into the school office during the school day or locked up in a locker. That is quite a sensible approach, as the phone cannot be used to distract lessons or to take photographs of other pupils—one head teacher who supports what the Government are going to do told me recently of a boy even taking photographs of one of the girls in the toilets. We do have to bear in mind that children sometimes do horrendous things. Of course this is not just about phones; DS games can send messages, and most schools would not wish pupils to use those during lessons, and the more affluent pupils might even have an iPad.
I take the point made by the noble Lord, Lord Knight, the other day that these devices can be used for good educational purposes. This is a difficult matter for schools, which is why it is more and more important to specify that these things should be searched for and confiscated and files deleted only if there is reasonable suspicion that they are going to be or have been used to disrupt, to bully or to do something unlawful.
That is why I welcome what my noble friend the Minister has said about sharing draft guidance with us as soon as possible, certainly before Report. I also welcome what he said about the Government wanting to avoid police involvement wherever possible. Of course the criminal justice system must be involved if a very serious offence comes to light, but I certainly believe—and I see many Members around the Committee today who I know agree with me—that we should not get children involved in the criminal justice system unless it is absolutely necessary. Then, of course, we should deal with them properly, but that is another debate altogether.
I have some questions for my noble friend the Minister. If files are erased and the teacher who erases them has reasonable justification for being suspicious, can the child challenge the erasure? If the child loses files of particular sentimental value to them, such as photographs of the family that they do not have on any other electronic device, what is the challenge?
Baroness Walmsley
Baroness Walmsley
My Lords, I shall also speak to Amendment 28. We now move to some of the more delicate checks and balances in relation to searching.
The amendments would make it unlawful to search a child of the opposite gender and never, in any circumstances, without another member of staff being present. Amendment 16 refers to schools and Amendment 28 to FE colleges.
As the noble Baroness, Lady Jones, said on Tuesday, searches can be very invasive and unpleasant experiences that cause children embarrassment, anxiety and humiliation. In addition, searches might have different and more pronounced implications for children with a history of physical or sexual abuse, children with a disability or special needs, or children from different cultural backgrounds.
That is why I believe the person should always be searched by a teacher of the same gender and always with a witness. I am not so concerned about searches of property or lockers, although doing that alone can also open up a teacher to allegations of theft, but searches of the person open the door to allegations of improper behaviour if he or she is either alone or of the opposite gender or both. At a time when the Government have found it desirable to bring in reporting restrictions on allegations against teachers, which we will discuss when we reach Clause 13, why are they attempting to open up teachers to this sort of allegation by encouraging them to search a child of the opposite gender alone?
Clause 2(3) allows a member of staff to search a child alone if they believe that,
“there is a risk that serious harm will be caused to a person if the search is not carried out as a matter of urgency, and … it is not reasonably practicable for the search to be carried out … in the presence of another member of staff”.
I believe that those are the precise circumstances in which a search should not be carried out alone. Let us imagine the situation in which the child and the teacher are nervous and hyped up. The child might know that he has a knife or a gun in his pocket—in these circumstances, the police should be called anyway, as carrying a knife or gun is a very serious matter. However, nothing is more calculated to stimulate the child to do something silly than the pressure of an immediate and perhaps forceful search in front of their peers. It is much better to calm the matter down and send for a senior member of staff so that the search can be carried out more safely.
I know that most teachers would be entirely sensible and cautious about something like this, but we must not make bad legislation that has the potential for putting them and the children in danger by doing something entirely unnecessary. I can think of no circumstances in which it would be safe for a teacher to search a child for a knife alone and no circumstances in which it would not be possible to send for reinforcements. If the child is wielding a knife, there is no need to search for it—it is on full view. The teacher has a right under common law to defend himself and protect the other children, and so we do not need this legislation for that situation. However, even then, the teacher would be wise to send for some support.
I believe that these amendments are absolutely necessary, and I beg to move.
Baroness Jones of Whitchurch
My Lords, our Amendment 17 mirrors much of what is in Amendment 16, but with slightly different wording in that it reinstates the protections that were introduced with very good reasons in the first place. They were to have a witness and for searches to be carried out by members of the same sex. I very much echo what the noble Baroness, Lady Walmsley, has said in this regard. We have touched on these issues in previous debates—it has been a bit of a running thread—but it does not diminish the force of the argument or the need to firm up the checks and balances that we need when teachers are operating in day-to-day school life.
Head teachers already have the power to search pupils. The powers already give teachers and head teachers the power to search, to use reasonable force to control or restrain a pupil, to stop a pupil committing a criminal offence, to prevent injury or damage to property, and to maintain good order and discipline.
In the Commons stages, colleagues debated why these new powers were necessary in addition to the existing ones and when they would be used. The answers at that time from the Government were unclear, and the Minister, Nick Gibb, was unable to give a convincing example of when these new powers would be needed. For example, when would a teacher need to search a pupil’s possessions without a witness being present? Moreover, in the evidence-taking sessions in the Commons, Brian Lightman, the head of the ASCL, said:
“I have been a head for 15 years. I cannot imagine a situation where I would sanction any of my staff searching a member of the opposite sex without a witness present. In fact, I wouldn’t allow anyone to search a member of the opposite sex, full stop”.—[Official Report, Commons, Education Bill Committee, 1/3/11; col. 24.]
Similarly, the representation from the teaching unions made it clear that their members would be very wary of using these new powers.
Perhaps more importantly, children’s rights are paramount in this regard. Many of us will have received the mailing from an alliance of children’s charities raising concerns about the extended search powers. It rightly draws our attention to the protection of children’s privacy in the UN Convention on the Rights of the Child and the Human Rights Act. It agrees with our position that the case for extended powers has not been made. Instead, it urges the Government to conduct a review of how the existing search powers have been implemented before commencing with any new powers. To me, that makes perfectly good sense.
In addition, these powers are so broad that they give teachers greater search powers than a police office would have under the stop and search provisions. For example, in the Police and Criminal Evidence Act 1984 the police powers to stop and search require,
“reasonable grounds for suspicion, before they may be exercised, that articles unlawfully obtained or possessed are being carried”.
Under Section 60 of the Criminal Justice and Public Order Act 1994, stop and search must be based upon a reasonable belief,
“that incidents involving serious violence may take place”,
or that people are,
“carrying dangerous instruments or offensive weapons”.
We do not need to give teachers these additional powers. As the noble Baroness, Lady Walmsley, rightly pointed out, if anything this will endanger the pupil/teacher relationship and put teachers at risk. In all these circumstances, we do not believe that the case has been made for opposite sex searches and searches without a witness. Therefore, we commend Amendment 17, as well as Amendment 28, which applies the same principles to FE colleges. I shall not rehearse the arguments, but we believe that the same ones apply.
Baroness Jones of Whitchurch
Before the Minister responds, I wanted to make a quick comment in response to the noble Lord, Lord Sutherland, who raised the crisis issue. That underlines our argument, which echoes what the noble Baroness, Lady Howe, said, that surely what we need to do is to review how the existing legislation has been working so far. It has been in existence for 15 years. If there were going to be crises, they would have happened by now and we should know about them. We should therefore know what extra legislation, if anything, is needed to deal with it. I can genuinely say that there does not appear to be a chorus of demand from the teaching professions saying, “We were in this awful crisis and we were constrained from what we could do by your really unhelpful legislation”. There does not appear to be that demand, but maybe it is out there. Maybe we should do what the noble Baroness, Lady Howe, is saying and find out what is happening on the ground, but without rushing into the new proposed legislation, which opens us up to other problems and repercussions, which we have not yet fully identified.
I wanted to make the quick point that we should review first and see whether there are those crises out there.
Baroness Walmsley
The noble Baroness, Lady Jones, has stimulated me to emphasise the questions that I would like my noble friend the Minister to answer. I was saving them for my withdrawal speech, but it might be helpful to my noble friend if I emphasised them now. I really would like to know what sort of crisis we are talking about, because nobody has yet described to me the sort of crisis that would make it impossible for a teacher to send a child to fetch a senior member of staff or a member of staff of the correct gender.
Furthermore, what evidence is there that it is necessary to allow searches of a pupil alone, by a teacher of any gender? Like the noble Baroness, Lady Jones, I have not heard an outcry from the teaching profession telling us that the checks and balances in the current legislation need to be withdrawn to allow them the freedom to deal with the situations that they are being faced with. I am hearing it from some head teachers, though not all, but I am certainly not hearing it from teachers themselves. As I said at Second Reading, there is this disparity of opinion within the profession itself, which makes it very difficult for us as legislators and non-teachers—most of us are non-teachers—to legislate on what is right. Perhaps my noble friend can give us some evidence of the need to remove these checks and balances and a clear description of the sort of crises that we are talking about. Are we talking about a child with a grenade in his pocket and his finger on the pin? That I would describe as a crisis—but I have never heard of it occurring. But a child with a knife or a gun in his pocket and not with his hand on it and not wielding it is a situation that would allow you to send for somebody else. If a child has it in his hand, it is on view and you do not need to search for it. You have a common law right to remove it. But if you have to search for it, you have time.
Lord Sutherland of Houndwood
My Lords, the question of evidence is close to my heart, having chaired the Science and Technology Select Committee. I absolutely agree that we should achieve an evidence-based policy. Seldom do we do so, but we ought to.
My question is simply this. If there is no evidence that this is needed, is there evidence that training is needed, in the many other provisions of the Bill? We are all very strong on the importance of training. I am just concerned about having blanket legislation that could rule out the unforeseeable—and I think we have accepted that just occasionally some teachers have experienced that.
Lord Hill of Oareford
My Lords, I thought that this would be a good and interesting debate and so it has proved. The key issue was raised by the noble Lord, Lord Sutherland of Houndwood; namely, whether legislation should in every respect preclude the possibility of some situation that none of us sitting here can necessarily envisage, although the noble Earl, Lord Listowel, raised one such possibility, or whether we should take the view in approaching legislation that, if we are going to be serious in what we say about trusting professionals, we should provide them with a bit of space to exercise their professional judgment and give them support in doing so. That seems to me to be the argument of principle that lies behind, and has already emerged in, our discussion. The decision that we ultimately reach on these provisions will hinge on it. Are we prepared to allow that small bit of space in emergency situations, or do we take the view that we would prefer to close down that possibility by legislating?
I accept the points made from the outset by my noble friend Lady Walmsley and by a number of other noble Lords. Opposite-sex searches are extremely sensitive—more so at secondary school than at primary school. We have discussed previously the practical issue arising in primary schools from the fact that there are no male teachers in 25 per cent of them. That may have been the relevant age in the instance to which the noble Earl referred. I recognise the sensitivity of searching without a witness. Given that I do so not being a teacher or being in these difficult circumstances, I believe that every teacher or head will understand the sensitivity of the matter even more sharply, because they will know that the consequences to them, professionally and personally, of making the wrong judgment would be disastrous. As a head teacher put it to me the other day, “Any teacher will be very careful about putting themselves in harm’s way”. That is an extremely important point for us to remember. It links to the concerns that the noble Baroness, Lady Jones of Whitchurch, quite rightly raised about putting teachers in danger by giving them such powers.
As we have already discussed previously, these are permissive powers. Under provisions relating to searching powers, head teachers may not require anyone other than school security staff to undertake the search—that will not change—so teachers can draw on this should they feel it necessary for them to do so. There would be very few instances where this situation would ever arise, and, even if it did, an individual teacher may say, “No, thank you. That’s not for me”, and exercise their professional judgment.
I know that I shall have a hard job persuading some noble Lords, but I will attempt to set out why the discretion granted to school and college staff in Clauses 2 and 3 to use their professional judgment, combined with the safeguards which we have included in both, is a sensible way forward.
A number of safeguards already apply to all aspects of the powers to search in Section 550ZA of the Education Act 1996 and Section 85AA of the Further and Higher Education Act 1992. I shall not go through them again, but they are in place. There are additional safeguards, which my noble friend Lady Walmsley referred to, for the new powers. Searches would be permissible only where there was a risk that serious harm might be caused to the person if the search was not conducted as a matter of urgency and if, in the time available, it was not practicable for the search to be carried out by a person of the same sex or in the presence of another member of staff.
The noble Baroness, Lady Massey, raised the point about a parent. The response given by the noble Lord, Lord Sutherland, is the one that I, too, would give: that is, if it is an emergency situation, trying to get a parent there—although, all other things being equal, it would be rather nice—would not be relevant here. However, I understand the thought that lies behind it.
Given that this is an emergency provision and, by their nature, emergencies can arise at any point, and while I hope that schools and colleges will have little cause to use this power, it is important that they should have the flexibility to act in the interests of students and staff where their safety is threatened in the kind of case that the noble Earl, Lord Listowel, mentioned. We expect that the vast majority of searches in future will still be conducted by a member of the same sex and will still be witnessed by another member of staff, as my noble friend Lord Lucas argued. The extension of the provisions is simply intended to give staff the power to act in the interests of the safety of all in emergencies.
In terms of who supports this extension, I take my noble friend’s point that it is clear that some teachers and heads do not want it, but it does have the support of the Association of Colleges, the Sixth Form Colleges’ Forum and the Independent Schools Council. Our broad approach on search has support from the Association of School and College Leaders.
I recognise that there are concerns and that this is not a simple and straightforward case, as the noble Lord, Lord Sutherland, reminded us. We have listened to what the JCHR said. In wanting to help buttress the position of teachers who find themselves in difficult situations and to help protect other children, I recognise that a balance needs to be struck. I think that the Government should take those concerns on board and include in their guidance the specific points raised by the JCHR; namely the expectation that powers to search pupils of the opposite sex or carry out a search without a witness are likely to be used only on rare occasions. Also, the expectation of privacy should increase with the age of the pupil. That point was made by the JCHR and is a matter of sheer common sense. That is the right thing to do and I am happy to give that commitment today.
I know that we will want to discuss these issues further, but as I suggested on Tuesday, the department's expert adviser on behaviour is organising a meeting for noble Lords when I hope we will have a chance to go through some of these issues. I think that the invitation is on its way today and that the date is fixed for next week. I hope that he will be able to share his experiences and that noble Lords will be able to raise their concerns with him.
I hope that the safeguards in the legislation and the fact that we will address in the guidance points raised by the JCHR will, to some extent, reassure noble Lords and that my noble friend may, for now, feel able to withdraw her amendment.
Baroness Walmsley
I thank the Minister for his reply and all noble Lords who have taken part in the debate. I will pick up a few points. The noble Lord, Lord Sutherland, suggested that if I had my way there would be no need for training, but I point out to him gently that the current situation requires training. There are currently pretty wide powers for teachers to search pupils for quite a wide range of objects.
The noble Earl, Lord Listowel, raised the scenario of the young child with a piece of glass in his pocket on a school trip. My noble friend Lord Storey may be able to correct me, but on the vast majority of school trips, there is more than one member of staff because the dreaded health and safety rules and the risk assessments that schools have to do these days would ensure that there are at least two members of staff. I do not think that the situation of having to act alone would arise in that scenario.
The Minister mentioned that he did not want us to close down possibilities. But possibilities are closed down by sensible checks and balances under current legislation. He said that these are permissive powers. But I am afraid that when you give people permission to do something, at some time some idiot will go and do it in ridiculous circumstances. Yes of course I accept that 99.999 per cent of teachers would be sensible, but I do not want to open up the possibility by repealing some of our current sensible checks and balances for that 0.001 per cent of teachers to do something silly. The Minister talked about the safeguards that appear in Section 550ZA of some Act of Parliament or other. I ask him whether teachers know about that; I certainly do not. It is important that teachers are very clear about what they can and cannot do, which they will not be if we leave it to those obscure little bits of legislation.
I finish by asking the Minister: have any injuries occurred to any child because a teacher had to send for a witness or a member of staff of another gender? If that situation has not arisen, we should not make these changes to the current legislation. I beg leave to withdraw the amendment.
Lord Sutherland of Houndwood
My Lords, I am happy to find myself in my more natural position of supporting amendments rather than throwing four anchors astern. I pay tribute to the eloquence and passion of my noble friend Lord Laming and the experience on which that has been built. At Second Reading, I asked a specific question, which was that if there was a possibility of permanent exclusion—and it is included twice in the relevant clause in this legislation—there had to be a plan B. If any pupil is permanently excluded, there is a major problem that we cannot afford to put out into the wilderness without knowing the direction of travel that society ought to, and will want to, take.
The noble Lord, Lord Laming, has given us one possible solution to this—and I should like to think further about the details of Amendment 100—but there must be a solution, a plan B, and we need to know. If someone is permanently excluded, not simply from school but, as mentioned in Clause 2, from a pupil referral unit, we have a problem. What is plan B?
Baroness Walmsley
My Lords, you will see from the Marshalled List that I added my name to that of the noble Lord, Lord Laming, in his intention to oppose the Questions that Clauses 30 and 31 stand part of the Bill. Amendment 100 replaces Clause 30. It may be appropriate if I comment now.
It was, I think, the Children Act 2004 that imposed a duty on the local authority and a number of relevant partners to work together to improve,
“the well-being of children in the authority’s area”
and reduce inequalities. Initially, schools were not included in the list of relevant partners, and I seem to recall my noble friend Lady Sharp and I protesting loudly about that. Perhaps we were influential in getting schools added to the list at a later date. Therefore, it will come as no surprise to your Lordships to hear that I am very unhappy about the proposal to take them out again. Schools are the only service that all children access at some time or another and therefore they are in a better position than most to affect children’s well-being and equality.
I am not one who believes that the job of legislation is to send out a message but I do believe that, if you repeal a piece of legislation, that sends out a message whether you like it or not. We should remember the outcry when the department ditched the phrase “every child matters”. Everyone suddenly believed that every child did not matter to the coalition Government, which I know for a fact to be quite untrue. Therefore, what will be the message that goes out if we repeal the duty on schools to co-operate with local authorities? Some will believe that they do not have to do it any more and that would be a disaster, particularly for children who need joined-up services. Joined-up services are exactly what the recent Green Paper on SEN is trying to achieve. It is what all vulnerable children and their families want. Children’s trusts, being unaccountable, may not be the best organisations in whose hands to put the children’s plan, but it is essential that there is one and that schools are involved.
There are many special groups with needs that must wrap around the child and not stand alone, and the noble Baroness, Lady Whitaker, has just spoken about a very important one. Another group is young carers and I shall use it as my example. The Princess Royal Trust for Carers has concerns that, by withdrawing the duty on schools to co-operate with local authorities and the duty to have regard to children and young people’s plans, the Bill makes it increasingly difficult for local authorities to deliver against their responsibilities towards vulnerable groups of children such as carers. Services work best for young carers where local authorities retain a strategic role, where they have an overview of all services, including education, and where services and professionals join together around the needs of the young carer and his family. The Carers Strategy 2010 highlights the coalition Government’s commitment to improving support for carers. It advocates a whole-family approach, with services in health, education and social care working together to address the needs when it comes to providing the most effective support. It is also committed to embedding Working Together to Support Young Carers, a model memorandum of understanding between directors for children’s and adult services and health, social care and education. Removing the duty on schools to co-operate with local authorities—that is, with all services that matter working together—therefore runs opposite to the Government’s policy on supporting young carers.
We are not just talking about a few children. The 2001 census data show that there are 175,000 young carers aged from five to 18 in the UK, and I do not know how many more there are according to the most recent census. One-fifth are caring for more than 20 hours a week, and 13,000 young carers are caring for more than 50 hours a week. Twenty-seven per cent of young carers of secondary school age are experiencing educational difficulties. Where children are caring for a relative with drug or alcohol problems, the incidence of missed school and educational difficulties rises to 40 per cent. As young carers get older, so their caring roles often increase, and it gets more difficult for them to participate fully in education, as well as to take part in leisure and social opportunities. For them, time off is a thing unknown in many cases.
Therefore, young carers are a good example but there are others, as we have heard from the noble Baroness, Lady Whitaker. Most schools will carry out this duty anyway but it is those that will not do it unless they have a duty to do so that worry me. I think that we need this duty and it should stay on the statute book.
Baroness Howarth of Breckland
My Lords, I shall speak briefly, having not yet spoken at all on the Bill for a number of reasons. I support my noble friend in this matter. I particularly want to make the point that education does not exist in a vacuum and that education without an understanding of welfare—I have said this on a number of occasions—does not address the issues concerning children who will not learn unless those welfare considerations are addressed. I have asked on a number of occasions why this clause on co-operation is going to be taken out of the Bill. The answer that I have heard is that it is bureaucratic. Well, if it is bureaucratic, it is the kind of bureaucracy that I like. I have always felt that bureaucracy is not always a bad thing; some of it is really quite useful in terms of enhancing services.
Baroness Walmsley
“( ) Where a child’s SEN has association to behavioural needs, a school cannot exclude that child without demonstrating the attempts made to support the child’s needs.”
Baroness Walmsley
My Lords, the noble Lord, Lord Rix, has been called away as a result of a family medical situation and has therefore asked me to deliver his speech for him. I shall speak also to Amendment 42 in the noble Lord’s name.
He would first like to thank the Minister for the offer he recently made to meet him with some of his officials to discuss these matters in more detail. The noble Lord says that he is most appreciative of the Minister’s time and for his constructive and helpful approach to the various matters raised.
I intend to focus my comments on the educational attainment of pupils with special educational needs, notably those who are disabled, and particularly those who have a learning disability. For the record, it is appropriate that the noble Lord, Lord Rix, declares an interest to your Lordships through his role as president of the learning disability charity, Mencap.
As your Lordships may be aware, the exclusion of pupils with a learning disability remains disproportionately high compared to non-disabled children. Pupils with SEN—both with and without statements—are more than eight times more likely to be permanently excluded than pupils with no SEN. It is for this reason that he has tabled the amendment and Amendment 42, which aim to ensure that children with SEN are not unfairly excluded as a consequence of either their need for additional support to achieve their full potential, or the failure of a school to recognise and provide for those needs.
The amendment would ensure that where a child’s SEN has an association with behavioural needs, a school cannot exclude a pupil without demonstrating the attempts made to support those needs.
Inadequate identification of a pupil’s needs denies that pupil access to support and the consequence is a poor education. This in turn leads to children becoming frustrated with the lack of appropriate provision, and a misunderstanding by teaching professionals of the subsequent conduct and behaviour of the pupils concerned. However, all this may have been caused by the initial and ongoing failure of the school to identify that pupil’s support needs. In such a climate, what hope is there for the children affected? The tragedy is that once mistakes are made in the early years of a child’s education, they can sometimes lead to a repetition of these failings as they grow older and older. Amendment 34 would go some way to tackling some of the issues to which I have just referred.
This leads to my second amendment in this group, Amendment 42, which provides a trigger for an assessment of a child’s support needs if they are excluded more than once in a 12-month period. I understand that when this issue was raised during the Commons Committee stage of the Bill, Ministers claimed that it would be “too rigid in practice” to implement. Your Lordships will not be surprised to hear that I do not share this view. Indeed, I take a contrary opinion: the prospect of the trigger would lead to more schools taking the right steps early on in an attempt to avoid exclusions occurring in the first place.
I fear Ministers may also overestimate the enthusiasm of some schools and educational professionals for identifying where extra support is required for children who exhibit failing conduct. I also advise a rethink of this position to fall in line with the SEN Green Paper, which states that the Government,
“will recommend in exclusion guidance that children are assessed through an effective multi-agency assessment for any underlying causal factors. We will suggest that schools trigger this assessment in instances in which a pupil displays poor behaviour that does not improve despite effective behaviour management by the school”.
Why can the Education Bill not take note of the Green Paper, rather than wait a further year before accepting this sound advice? I beg to move.
Lord Lingfield
My Lords, I have enormous sympathy with the amendments that the noble Lord, Lord Rix, would no doubt have moved and spoken to if he had been able to stay. His record on behalf of the vulnerable and the disabled is superb. He has spent all his life doing these things.
The assessments for which he calls in his second amendment raise a question of some difficulty. Most schools in most of the 6,000 cases of permanent exclusion call for some reassessment at that stage. Not all schools do and that record should be improved. However, it is a stage that triggers—at least in the mind, if not in legality—a reassessment under those circumstances. There is a huge problem over that. Most SENCOs, most teachers and many professionals working in this area will tell you that when the assessment is triggered—which does not always happen, as we know—it is not independent. Some local authorities have a fine record in this area but there are some whose record is, frankly, poor. Too many of the professionals I have mentioned believe that because the assessment is made by local-authority-employed educational psychologists, it reflects rather more the funding and provision available in the local authority area than the needs of the child.
The Green Paper, which has already been mentioned, gives us a glimpse of hope on this. We all rather hope that when it becomes a White Paper it will become more definite. It promises that in some trial areas we shall find some real independent assessment of the kind that is necessary here. I hope that that will happen, that we will see many of those trials and that at the end we shall see a new system that will able to assist excluded children in this way.
I suspect that when the noble Lord, Lord Rix, reads Hansard he will find that the Minister has not been able to grant him immediate gratification. Nevertheless, he should be able to give some guarantee that those assessments must become more independent and be conducted by more objective criteria than they are at present.
The Earl of Listowel
My Lords, I thank the Minister for his reply to my amendment. I am pleased to hear that he is thinking of amending guidance in this way and I thank him.
Baroness Walmsley
My Lords, I think that once more it falls to me to don the mantle of the noble Lord, Lord Rix, albeit I cannot possibly do it justice. I am most grateful to all noble Lords who have taken part in this debate and I should like to make just a few points.
I was very grateful to the noble Baronesses, Lady Finlay and Lady Howells, in particular, for reminding us that children are not just excluded because they are naughty; there are many underlying factors. The noble Baroness, Lady Howells, reminded us that it could be, at worst, racism or, at best, a misunderstanding of the behaviour of certain cultural groups. The noble Baroness, Lady Finlay, reminded us that the child might be responding to a terrible trauma in their lives such as bereavement. I remind the Committee that sometimes children behave as though they have been bereaved when their parents split up. A parent has not died but is no longer in the child’s life and the child responds in that way. Therefore, we have to look at the underlying factors, whether they are the ones I have just mentioned or the SEN factors that many noble Lords have referred to.
It is particularly important that parents have confidence in the system of exclusion and the system of appeals. In that respect, I certainly support Amendment 52 in the name of the noble Lord, Lord Touhig. Parents should be able to choose their own SEN adviser. Only then will they have real confidence in the advice to the appeals tribunal.
I am grateful to the Minister, as I am sure the noble Lords, Lord Touhig and Lord Rix, would be, for saying that the guidance will be made statutory. I am also grateful to him, following something I said at Second Reading, for making it possible for me to meet Charlie Taylor. He is supervising the pilots where schools retain responsibility, in terms of both the financial bottom line and academic achievement, for where they place a child who might otherwise be excluded. It sounds like a very interesting innovation, which I gather will probably go on for two or three years. I am delighted to hear that the Government have undertaken to implement that sort of arrangement more widely if it proves helpful in preventing children being excluded in an unwarranted and inappropriate way.
Finally, on Amendment 43, I am grateful to the Minister for saying that the guidance will be revised. Will he ensure that children themselves can appeal against exclusion in their own right, as they can now do to SENT? That is, will they be able to appeal against an exclusion to the independent appeals panels in the same way that they can to SENT? Perhaps the Minister will write to me about that. I know it is a fairly new situation, but for me and others it is an important “rights of the child” issue.
On behalf of the noble Lord, Lord Rix, I thank the Minister for all his responses to the debate and beg leave to withdraw the amendment.