Education Bill
Baroness Walmsley Excerpts(13 years, 5 months ago)
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Baroness Walmsley
Baroness Walmsley
My Lords, I shall speak also to Amendments 38, 40, 44 to 47, 53 and 55 to 59 in my name.
I thank the Minister for the letter that I received today following our debates on Thursday. I particularly welcome the pilot to which he referred that allows children to apply in their own right to the Special Educational Needs and Disability Tribunal, with the possibility of that being extended across the country. He also referred to the possibility of regulations to allow them to appeal in their own name to the independent review tribunals when they come into force, and which we are about to debate. I should point out, however, that it would be discriminatory if children were not allowed to appeal.
I and others have been very troubled by the proposed changes to the right of appeal against exclusions. None of us wants to undermine the authority of head teachers and we understand their concerns. However, the fact that some appeals succeed indicates that not all decisions to exclude are correct. The effects of an exclusion on the life of a child are so extreme that it is vital to get these decisions right. I appreciate the Government’s attempt to put some sort of appeal in place in the form of the independent review panels but, frankly, that is not really good enough. I believe that if the appeals go to the right body with the right powers, expertise and experience, all will be well and justice will be done.
These amendments remove the education review panels created by the Bill and replace them with the right for all excluded pupils to appeal against permanent exclusion to the First-tier Tribunal for Special Educational Needs and Disability, as consistently recommended by the Administrative Justice and Tribunals Council. Here is the problem: the new review panels can only uphold the decision to exclude, recommend that the governing body reconsider the case or quash the decision and order the governing body to reconsider where it finds the decision to be,
“flawed when considered in the light of the principles applicable to an application for judicial review”.
The new review panels will not have the power to direct reinstatement. They will have less scope within which to operate and make decisions, but the nature of those decisions will be increasingly complex because they will have to decide whether the governing body’s decision was flawed in the light of the principles of judicial review. The Joint Committee on Human Rights and the AJTC have concluded that this does not provide adequate access to a fair and independent tribunal or an adequate remedy, and is contrary to Articles 6 and 13 of the ECHR.
There are many unanswered questions, including how the recommendation or direction to review will operate and the consequences of a governing body not complying with a recommendation or reaching the same decision to exclude again, following a direction to review. What happens to the pupil? Do they get another appeal? What timescales will operate and how do budgets cope with these additional procedures, especially given the additional powers given to the review panels to adjust school budgets, following a permanent exclusion?
One might ask: does the right of access to a court or tribunal apply to school exclusions? The Government state that it does not because of R (on the application of LG) v Independent Panel for Tom Hood School, decided in February 2010, which found that exclusion is not determinative of a civil right to which Article 6 applies, and Simpson v UK, which found that Article 6 does not apply to educational disputes. However, in Oršuš and Others v Croatia, decided a month later in March 2010, the European Court of Human Rights stated that Simpson v UK was no longer good law, so that Article 6 does apply to educational disputes. In Oršuš, the dispute related to discrimination. The JCHR is of the view that, if Article 6 applies to discrimination in schools, it would also apply to exclusions, which is a strong case. In Oršuš, the court also referred to its case law, which establishes that where a state confers rights that can be enforced by a judicial remedy, those rights can in principle be regarded as civil rights to which Article 6 applies. So the judicial review bit is very significant.
The JCHR is of the view that in a case of permanent exclusion, the right in question is not just the right to an education but the right to continue to attend the school at which the child is enrolled. That right is enforceable before the ordinary civil courts by way of judicial review. The JCHR therefore finds that, as a matter of convention law or of the common law, the right to access to an independent court or tribunal applies to permanent exclusion from school.
Therefore, we now need to ask whether the new review panels are really an independent and impartial tribunal. The Government’s view is that they are. However, the review panels will be able only to quash a decision and order reconsideration. That does not create the possibility for a proper review of the facts, so does not meet the requirements of a fair trial. Given the consequences of exclusion, it is especially important that the cases are examined carefully to ensure that the decision was correct and can be justified, as I said.
The AJTC has the statutory remit to keep under review the administrative justice system and the constitution and workings of tribunals within its oversight. It has taken a keen interest in the operation of school exclusion appeal panels for some years, and has concerns about the Government’s proposals. It notes, as has been mentioned in Committee, that 70 per cent of permanent exclusions affect children with special educational needs. It has consistently recommended that all appeals against permanent exclusion should be heard by the First-tier Tribunal, which it points out can easily be renamed the “first-tier tribunal (education)”.
The AJTC notes that the Government’s proposals are based on the assumption that all exclusions concern children who have been violent against teachers or pupils. That is not the case. I have here a table that shows exclusions in 18 local authorities across the country and 82 exclusion appeals in a particular year, of which 22 were successful. Of the 82, just under 80 per cent were for violent offences; one in five was for non-violent offences.
The AJTC has found that the small percentage of exclusions which go to appeal, which is around only 9 per cent, are more likely to be cases where the parent feels a real sense of injustice. It is therefore interesting to look at the reasons why some appeals succeed. The majority succeed either because the panel did not accept, on the evidence before it, that the pupil had done what he or she was alleged to have done; or because exclusion was a disproportionate punishment for the alleged offence.
A couple of other points need to be made. The Government claim that the SEND reviews take too long. It is true that there is clearly room for improvement, but they are piloting an eight-week turnaround time for appeals, which is very much better than they have been achieving. Secondly, since 70 per cent of all exclusions concern SEN and therefore go to the First-tier Tribunal anyway, it would be much more economical for all exclusion appeals to be heard by the tribunal, instead of requiring each local authority to set up and operate a separate system of review panels to deal with only 30 per cent of the total number of appeals. Also, I regard it as discriminatory to allow SEND pupils to apply to a proper tribunal, while fully able pupils can apply only to a panel with reduced powers.
I have tabled two groups of amendments that do roughly the same thing. I shall mention the difference. Amendments 37, 53, 55, 56, 58 and 59 have been proposed by the AJTC. The rest achieve roughly the same outcome but with one small difference. My noble friend Lord Storey will speak to Amendment 47 in this group, which covers a slightly different matter and has to do with the fine.
What do my groups of amendments do? The right of appeal to the First-tier Tribunal is separated in the Bill from the power to exclude, since this would have the effect of not requiring the tribunal to have regard to the Secretary of State’s guidance, and so maintain the tribunal’s independent discretion. The AJTC group gives the tribunal the power to state that reinstatement would be appropriate but is not practicable in the circumstances. This could happen if, for example, the pupil, parent or guardian does not want reinstatement, even though they have a right to it, but has brought the appeal because they want to state their case. It could happen where relationships have broken down to the extent that it would be more in the interests of the child and the rest of the school community if he were to go elsewhere. The other group of amendments does not give this power, but the tribunal should have it; it is crucial. Where relationships have broken down to such an extent that the head, for various reasons, does not want to let the child back into the school, this would give the tribunal the opportunity to take that into account and make the case that the child has been unwarrantedly excluded, without insisting on reinstatement.
Should the department maintain its argument that sending all exclusion appeals to SEND tribunals suggests that all exclusions concern children with SEND, this could easily be remedied by changing the type of tribunal. This may require a consequential amendment, but I am advised by the Public Bill Office that this could be tabled at a later date. I am also advised that consequential amendments to Schedule 1 may be needed. Again, these could be tabled at a later date when the fate of these amendments is known.
I have received a note of support for these amendments from the National Governors’ Association, which says that the majority of its members support the right of appeal and think that the current government proposals to change to a review panel will be more bureaucratic, and will cause more work, delay and confusion for the parties concerned. I hope I have made the case, albeit rather long-windedly, that justice requires some changes to the proposals in Clause 4. I beg to move.
The Deputy Chairman of Committees
I should advise the Committee that if this amendment is agreed I cannot call Amendments 40 to 47, inclusive, for reason of pre-emption.
Lord Hill of Oareford
It is our intention to publish guidance to cover these issues which we will be able to then share with Peers so that they can see how that is proceeding. That will address some of these issues.
Baroness Walmsley
My Lords, I am most grateful to the Minister for his reply and to all Members of the Committee who have taken part in this fascinating debate. I have a confession to make. I did not declare an interest at the beginning of this debate: I was once actually excluded. At the age of four, the head of my dancing class asked my mother to take me away because I was not prepared to stand in a row with all the other little girls and point my toe and wave my arms in exactly the same way as everyone else. I wanted to stand in the corner, be creative and do my own thing. I was not prepared to be a clone, so I was asked to leave. However, I remember feeling that sense of injustice because I had not been disruptive in any way; I had not been naughty; I just did not like standing in a row and doing the same as all the other little girls.
Therefore, I suppose that what we need to think about is the cause of the behaviour, and there have been many powerful speeches about the underlying factors that lead to these serious permanent exclusions. A large number of points have been made and I should like to take up a few of them. Much has been made by the Minister and my noble friend Lady Perry about the power of the independent review panel to quash the original decision and ask the school to reconsider, but what is the point of asking it to do that if there is no redress and if it continues with its wrong-headed decisions? The child actually has no right to any redress at all.
An innocent child cannot, in the current situation, be blamed for not wanting to be sent to a referral unit because only today there has been a report from, I think, Ofsted about the poor results that are frequently obtained by pupils in referral units. We must do something about the quality of alternative provision and I very much welcome what the Government are doing with the pilots that we talked about last Thursday. They have the potential very much to drive up the quality of alternative provision, and they are a very good idea.
What the Government are proposing is discriminatory because—not perhaps for the reasons suggested in the debate—we are setting up one system for children with special needs and a completely different one for children without special needs. In fact, we are taking away the current independent appeals panels and setting up something completely new to deal with only the 30 per cent of appeals that do not have any special needs connotations. That strikes me as being daft, particularly in the current financial situation. Why are we doing that? As the noble Lord, Lord Lucas, commented, we are dealing with very small numbers here. The vast majority of children behave well in school; the vast majority of cases of exclusion do not lead to an appeal; and three-quarters of the appeals are not upheld. We are talking about only 25 per cent of appeals being successful—and a very small proportion of those involve the reinstatement of a child where the school does not want it. We are talking about only 60 cases a year.
I ask the Committee: are we throwing away an important principle of natural justice for the sake of 60 cases out of 11 million children? I agree with the noble Baroness, Lady Stowell, that this is an issue of principle—but not the principle that she enunciated. It is the principle that if you have been found innocent or if the punishment has been found to be excessive, you should have a right to reinstatement, as long as other factors do not outweigh that right. We have to bear in mind—I absolutely accept this—the effect on the rest of the school. I therefore draw noble Lords’ attention to proposed new paragraph (c) in Amendment 59, which states that one of the powers of the tribunal could be to,
“decide that because of exceptional circumstances, or for some other reason, it is not practical to give a direction requiring reinstatement, but that it would otherwise have been appropriate to give such a direction”.
That gives the tribunal the opportunity to say, “This child’s case has been made. We are not convinced that the child did what the child was supposed to have done”, or, “We are not convinced that exclusion is the appropriate punishment for it. However, we accept that if this child were to go back into the school, it would cause major problems for the rest of the school community”.
There may be several thousand people involved in that community. Therefore, for the sake of their best interests, and probably those of the child concerned—who wants to go where they are not wanted?—it might be better if the child went somewhere else, even if the case has been made and it is accepted that the decision was wrong. It could well be that that “somewhere else” can better meet the needs of the child. Therefore, that part of the amendment provides a very important power, which I should like to see given to the First-tier Tribunal that I am proposing.
I thank the Minister for what he said about Amendment 47—that the Government will look at the issue of the fine in the consultation. I agree with the noble Lord, Lord Peston, that the fine does not make sense. You have just to ask yourself: who will suffer if money is taken away from a school? It will not be the child who is supposed to have misbehaved. He will have gone to some other school. It will be the children who remain in the school who will suffer if the school is fined. It really is not the sort of deterrent to schools expelling incorrectly that makes sense. I accept that reinstatement can often be difficult but I draw the Committee’s attention to proposed new paragraph (c) in Amendment 59, which would take care of that situation.
I have just one more point on the consultation over the fine. Will the Minister confirm that special schools and PRUs will also be consulted? They are often very small schools. The Minister is nodding; I thank him.
In conclusion, I ask the Committee to think about how adults would respond if, in an employment tribunal, a case had been made in favour of the employee and against the employer, finding that the response to what had happened had been disproportionate, but the employee was unable to get any redress at all. If it is wrong for adults, it is wrong for children. As has been said, children have a very strong sense of what is fair and what is not fair. A decision of this sort could turn a child totally against society. As one noble Lord rightly said, it could flip somebody who already feels disengaged or victimised—as though nobody understands them and everybody is against them, or as though they have no opportunities and are discriminated against—into becoming an extremely antisocial person. Although I accept that there are enormous difficulties in this situation, I ask the Minister to consider very carefully whether it is right to throw away a principle of natural justice in favour of doing something in only 60 cases a year out of 11 million children. It seems a disproportionate act by the Government. I hope we can have more discussions about it over the next few weeks. I beg leave to withdraw the amendment.
Education Bill
Baroness Walmsley Excerpts(13 years, 5 months ago)
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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.
Education Bill
Baroness Walmsley Excerpts(13 years, 5 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
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.
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.
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.
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.
Baroness Walmsley
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.
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.
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.
Schools: Dyslexia
Baroness Walmsley Excerpts(13 years, 5 months ago)
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Lord Hill of Oareford
I normally have my discussions with my noble friend Lord Sassoon in a slightly more private setting. I do not accept the basic premise of the noble Lord’s question. Clearly, there is a problem across the board that we do not have as much money as we would like, but the education settlement that we got from my noble friend Lord Sassoon and his friends at the Treasury enabled us to maintain school funding at flat-cash levels, so that is not the main issue for us in this regard. It would always be nice to have more, but that is not the fundamental problem.
Baroness Walmsley
My Lords, when most initial teacher training is done in schools, as the Minister of State for Schools appears to wish, how will the Government ensure that all newly trained teachers get proper training on this issue? Do this issue and others not make the case for ensuring higher education institution input into the theoretical side of initial teacher training, especially when 10 per cent of the population are somewhere on the dyslexia spectrum?
Lord Hill of Oareford
I agree with my noble friend about the importance of input from higher education institutions. The Government are not saying that we do not believe that higher education institutions will play an extremely important part in teacher training. We are saying that, alongside that, there should be more opportunities for teachers to learn from other teachers, professionals and practitioners in the school. I very much take the noble Baroness’s point about the important role that higher education institutions play.
Education: Academies Funding
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Lord Hill of Oareford
My Lords, as I said in my opening Answer, we inherited the system that we operate for funding academies and for trying to ensure that the basis of equal funding is maintained, and it is inherently complex. It has been in place since 2002 and because it is complex, sometimes the classification of returns under Section 251 leads to difficulties and some of the problems alluded to by the noble Baroness. Our aim is to make sure that funding is provided on an equal basis. Where there are problems of the sort that she mentioned, the department will look into them on a case-by-case basis and, if it is appropriate, make arrangements to claw back money or in some cases pay additional money. Sometimes, the way in which this complex system operates can lead to an academy getting less than it should. We will look at this, and I hope that the funding review of the whole system that we announced some time ago will help to address these problems and enable us to reach a sustainable solution.
Baroness Walmsley
My Lords, will the Minister bear in mind that some local authorities’ ability to deliver services to schools that have not opted out and become academies is hindered by the fact that they no longer get economies of scale when they purchase services for those schools and therefore they become more expensive? Does he intend to compensate local authorities for that situation?
Lord Hill of Oareford
There are a number of complexities in the system. One that is not widely recognised is that, because of the way in which the LACSEG system operates, local authorities continue to receive funding for some services that academies are being funded for. So there is some double funding. It is not that an academy is getting more than it should; it is that, traditionally, the local authority has carried on receiving that funding. We need to look at that and to address all these issues to make sure that the principle of equity is maintained.
Education Bill
Baroness Walmsley Excerpts(13 years, 6 months ago)
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Baroness Walmsley
My Lords, I welcome the emphasis in this Bill on improving the ability of teachers to teach. Given what she has just said, the noble Baroness, Lady Jones of Whitchurch, will not be surprised to hear me agree with my noble friend the Minister about the importance of freeing up schools to get on with the job. Members on these Benches will emphasise the rights of every child, particularly the most vulnerable, and judge the Bill on whether it furthers the Government’s objective of encouraging social mobility and inclusion. There are a lot of issues in the Bill, so I shall focus my remarks on Parts 1, 2, 4 and 5, and leave the rest to my noble friends on these Benches.
I give an enthusiastic welcome to the extension of free early years provision to disadvantaged two year-olds, but I am a little concerned about charging for provision beyond the statutory three hours, and I worry that those families who most need high-quality early years education might be deterred from taking up the free hours by their lack of ability to pay for the additional hours they actually need. Will the Government please review this to ensure that disadvantaged families do not lose out?
Wide concern has been expressed about the proposals in Clause 2 on searching pupils. We on these Benches of course agree with the coalition agreement, which says that teachers will be given the tools they need to maintain discipline. I echo the Minister’s statement that every child has a right to learn, so schools must ensure that the behaviour of one child does not impinge on the rights of other pupils to an education. However, there are two questions. First, are these the measures that will support teachers to maintain discipline? Secondly, are these the measures that teachers and heads want? In answer to the first, I think they are much less relevant than a fair code of school rules and a strong leadership team supporting the authority of all teachers. In answer to the second, some heads want these measures but most teachers do not, so the profession is divided.
I think that searching affects the fundamental relationship between teachers and pupils, which changes from one of trust, about preparing the child for its future life at work and in the family, to one of policing. I have concerns about training and teachers searching children alone, and I will raise these as the Bill progresses. The Joint Committee on Human Rights also has concerns about the impact of this very widely drawn power on the rights of the child and recommends three amendments to restrict it. Will the Minister say whether the Government intend to introduce these amendments in Committee? Most FE colleges have a security officer trained to search safely. However, if a 20 year-old male security officer wishes to search a 14 year-old female student, we have a human rights problem.
On exclusions, Clause 4 removes the exclusion appeals panel and replaces it with a review panel, which cannot insist that a child should be reinstated if it feels that the decision has been unfair. I accept that this happens in only a very few cases, but we need to have an eye to natural justice. The fact that appealing parents can have the support of an SEN expert is welcome, but I would like them to be able to choose the expert for themselves. The threat of a fine might not be enough to deter a school from excluding a child unfairly, but I would ask whether there will be a sliding scale, since £4,000 seems an awful lot for a small primary school. We must of course balance the right of a child to a placement that best suits his needs with the rights of the other pupils in the school.
We welcome the proposal in the White Paper for schools that exclude a child to retain responsibility for both his funding and his future achievement. However, that does not appear in the Bill. We are told that there are to be pilots. Will the Minister commit the Government to legislating for this if the pilots prove a successful disincentive to unfair exclusions?
Clause 5 removes the duty to give 24 hours’ notice of an after-school detention, which was introduced by the noble Baroness, Lady Shephard, for the good reason that it would avoid a child’s journey home being unsafe. I am very concerned about the removal of this duty. We do not want another Milly Dowler case. A child can disappear in the blink of an eye. However, schools tell me that there are problems with 24 hours’ notice, so I will table an amendment to ensure that parents are contacted on the day and that the school satisfies itself that the child can get home safely. We need to be very specific about that.
Many schools have found behaviour and attendance partnerships to be of great value in arranging managed exclusions. With the removal of the duty to take part in such partnerships, how will the Government ensure that schools work together to manage children who are not settling down, or those with special needs for whom the school is not properly catering? The Minister will know that children with SEN are disproportionately excluded. This has gone on for years. Can he explain how it will be avoided?
The abolition of the QCDA passes control of the curriculum to the Secretary of State. The QCDA was established only recently to advise the Secretary of State on the curriculum, but now he feels that he does not need its advice. Perhaps we shall see established an external review of the national curriculum and an internal review of PSHE. It seems a great deal of trouble and expense at a time when the Government are urging all schools to become academies, which do not have to follow the national curriculum anyway. Perhaps that is why the Secretary of State feels that there will not be enough work for the QCDA in the future. Perhaps the Minister will enlighten us on this.
I am particularly concerned about the abolition of the duty to co-operate with local authorities. It is very important that professionals work together around the child. We need to make sure that that continues to happen.
Clause 36 means that you cannot have a new community school unless no one wants to set up an academy or a foundation school. This does not sit well with the Government’s intentions on localism, fairness and parental choice. I have no doubt that we will have considerable discussions about this in Committee.
Education Bill
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Lord Hill of Oareford
My Lords, as the noble Baroness, Lady Hughes of Stretford, said, we have had an excellent debate. The number of speakers alone shows the great concern that this House has in improving education and extending opportunity. Expertise, knowledge and passion have been shown in equal measure this evening, and I thank all noble Lords for their contributions. I particularly congratulate my noble friend Lord Edmiston on his excellent maiden speech and on all that he is doing as a sponsor of the Grace academies in the West Midlands. He reminded us all that academic education is not the be-all and end-all, as, rightly, did the right reverend Prelate the Bishop of Oxford, and that routes to success come in all shapes and sizes. He is also living proof of the importance of people having second chances.
With more than 50 speakers, I hope noble Lords will forgive me if in the time available I do not respond to every point that has been raised. However, I undertake to write to noble Lords when their points require a more detailed reply.
I am glad to say that I think there was a broad consensus on a number of the principles underlying the Bill. First, I welcome the support that the Bill has received from a number of my noble friends, including my noble friends Lord Baker, Lady Perry of Southwark, Lady Ritchie of Brompton, Lord Lucas, Lord Blackwell, Lord Lexden and Lord Willis of Knaresborough, about the importance of increasing school autonomy and trusting professionals. The evidence of the desire of school leaders to take greater control of the future development and success of their schools is clear, as we see thousands of schools seeking academy status.
I am grateful for the support of the noble Lord, Lord Sutherland of Houndwood, and my noble friend Lord True for the academy programme, which shows that it is possible to have greater autonomy, which is widely accepted, without the isolation and fragmentation which I know some noble Lords feared when we debated the Academies Bill a year ago. Indeed for me, one of the most exciting developments of the academies programme is the way in which chains and clusters of schools are joining together to increase opportunities across their schools for school improvement and career development. On free schools, I hope that the noble Lord, Lord Whitty, may in time revise his views a little—as he has on academies, a little.
Many noble Lords, in particular the noble Baroness, Lady Morris of Yardley, spoke about the importance of teachers. I agreed with much of what she said, as I often find myself doing. It was no accident that we called the schools White Paper The Importance of Teaching. It reflects the evidence that teachers make a critical contribution to the achievement of pupils and that we must do more to recruit the best graduates into the profession and retain the best teachers. I take the points made by the noble Lord, Lord Bichard, about setting out our plans. I agree with him about the importance of professional development. We are taking measures to improve teacher quality that do not require legislation, and we will be setting out our plans in the way that he suggests.
Some of the debate, however, highlighted some of the tension that seems to exist between our ambition to treat teachers as professionals who know best how to meet the individual needs of their pupils and wanting to require all schools to act in particular ways. My own view is that most teachers and school and college leaders are far better placed than Ministers to know how best to inspire, educate, and indeed discipline pupils. That brings me to the proposals on behaviour and discipline, about which it is fair to say there was a range of views.
Many noble Lords, including my noble friends Lady Perry, Lady Morris of Bolton and Lord Lingfield, supported the additional powers in the Bill on discipline, which build on those introduced by the previous Government through the ASCL Act 2009. The noble Lord, Lord Collins, spoke about bullying, in particular homophobic bullying, while the noble Baroness, Lady Howells of St Davids, spoke about racist bullying and the noble Baroness, Lady Whitaker, mentioned Gypsy, Roma and Traveller children in that context. We are working with external organisations, including those such as Stonewall, in helping schools to develop best practice on these issues, but it is important that the measures that we want to take to help entrench discipline will help to deal with the problems of bullying, in particular cyberbullying.
I recognise that other noble Lords, including my noble friend Lady Walmsley and the noble Baroness, Lady Howells of St Davids, had reservations about our measures and wanted to ensure that adequate safeguards are in place. The Government believe that the extension of powers are proportionate and necessary, and that they strike the correct balance between the rights of pupils and students and the powers that those running schools and colleges want to secure a safe environment for all—including, perhaps above all, the most vulnerable—in which to learn.
I am grateful to the Joint Committee on Human Rights for its scrutiny of the Bill. I see that its report welcomes the changes that we are making to extend free early years education and to improve behaviour and discipline in schools as they help children exercise their right to education. They are an important part of this Bill and our wider education reforms. I am confident in the rationale for the changes we are making and their compatibility with convention rights, but we are obviously considering the detail of the JCHR report and will clearly go on to debate the issues that it gives rise to as the Bill passes through Parliament. The department’s new expert adviser on behaviour, Mr Taylor, will be working with teaching schools to help ensure that best practice is shared both through initial teacher training and through school-to-school support, while working with existing initial teacher training providers to ensure best practice.
If I may, I shall say a few words on exclusions, concerns about which were expressed by the noble Lord, Lord Morris of Handsworth, my noble friend Lord Avebury and the noble Baroness, Lady Whitaker. A number of concerns were raised about the changes to the exclusion process made by Clause 4. I agree with those who argued that avoiding problems escalating to the point where exclusion is necessary at all is in the best interests of all concerned—the noble Baroness, Lady Grey-Thompson, made that point particularly persuasively. That is why we are trialling a new approach to exclusions aimed at encouraging exactly that. A similar approach in Cambridgeshire has had excellent results, cutting the number of children in PRUs from 700 to some 150. The Government intend to take forward trials to help deal with exclusions and give schools the budgets in the way that was suggested. Moreover, by ensuring that behaviour and achievement are core elements of the more focused Ofsted inspection framework, we will hold schools to account for ensuring an orderly, safe environment in which all pupils achieve.
Unfortunately, we cannot avoid exclusion in every circumstance. Schools must be allowed to make these difficult decisions in the interest of all pupils and staff. The revised process will provide an independent review in every case of permanent exclusion where a parent requests it. The panel’s decision will give governing bodies a clear indication that the exclusion has been unreasonable and return the case to them for consideration.
I reassure noble Lords that the statutory framework in place for the education of permanently excluded pupils ensures that their right to full-time, suitable education is protected, and we are also determined to increase the quality of alternative provision available for excluded pupils, including by legislating to create alternative-provision academies through this Bill. That relates to important points made by the noble Lord, Lord Sutherland of Houndwood, and my noble friend Lord Lingfield about how we can improve the quality of provision for the children most at risk.
One theme running throughout many contributions was schools’ accountability and the impact of the changes on the role of local authorities. This point was raised by the noble Lord, Lord Griffiths of Burry Port, and I am glad that I was able to meet at least one of his concerns about local authority governors. We are keen to have a system where schools look to parents and their locality for their accountability, with better information available to enable schools to be held to account, including international comparisons, as my noble friend Lady Perry and the noble Baroness, Lady Coussins, argued. I was grateful for the comments made by the noble Baroness, Lady Morgan of Huyton, about Ofsted and her reminder about the need to keep inspection focused. I can reassure my noble friend Lady Jolly that, in addition to risk assessments to trigger inspections of outstanding schools, we expect Ofsted to include outstanding schools in thematic inspections.
Local authority children’s services continue to play a critical role in the early years, special educational needs and child protection in particular. There are, however, two areas in which changes are necessary. The first is in relation to commissioning school places. The previous Government’s 2005 schools White Paper, Higher Standards, Better Schools For All, set out a vision of greater autonomy for schools with the local authority acting as a commissioner rather than as a provider. We share that vision.
We want to see swifter and more decisive action by local authorities to address underperformance, but, as my noble friend Lady Ritchie of Brompton argued, that is best achieved where local and central government work together. However, where authorities fail to act, Clause 43 gives us a reserve power to require action.
A number of noble Lords, including the noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Knight of Weymouth, characterised the Bill as centralising powers to the Secretary of State. I look forward to discussing that during detailed scrutiny of the Bill in Committee. In the vast majority of cases these powers are simply existing powers transferred from a quango, which will lead to increased accountability —yes, through Ministers—to Parliament. There are few areas where the Secretary of State can reasonably be described as having taken substantive new powers rather than powers to give effect to the legislation. These new powers—they are new powers—include the reserve powers to direct sample schools to take part in international surveys, to require local authorities to address underperforming schools and to intervene in underperforming colleges, which has been welcomed by the Association of Colleges. One of the other areas is a power to cap fees for part-time higher education so that the new loans the Government are introducing will cover the course fees. I think that that measure commands broad support. I do not accept that these powers can be used to characterise the Bill as centralising, especially as it also removes a significant number of requirements currently imposed on schools, colleges and local authorities by central government.
Concerns have been expressed about the practicalities of major reform of the arm’s-length bodies, some of which were raised by my noble friend Lady Sharp of Guildford, and particular concerns were raised in connection with the General Teaching Council for England. I always listen to the noble Lord, Lord Puttnam, with great care, but I do not agree that the Bill diminishes the role of teachers. However, I was particularly struck by what he had to say about technology, as I was by the remarks of my noble friend Lord Willis of Knaresborough. In response to a question put by my noble friends Lady Jolly and Lord Lexden, we are considering whether to make available to employers information on individuals who have qualified teacher status to make their recruitment checks easier. I hope that I will be able to reassure noble Lords during the passage of the Bill of how the changes being made to the arm’s-length bodies are being managed.
Specifically on the abolition of the Qualifications and Curriculum Development Agency, the Government of the day, not the QCDA or its predecessor bodies, have been responsible for the national curriculum since its inception. The QCDA’s current role is only advisory. Decisions about the national curriculum are already taken by the Secretary of State and it is of course the aim of the Secretary of State, with his national curriculum review, to slim it down.
On teacher anonymity, I welcome the support of noble Lords, including the noble Baroness, Lady Jones of Whitchurch, my noble friends Lady Brinton and Lady Perry, and the noble Lord, Lord Morris of Handsworth, on the provisions for reporting restrictions about allegations made by pupils against teachers. A number of noble Lords asked us to consider extending these provisions further, although by contrast my noble friend Lord Black set out his concerns in that he felt the measure is an unwelcome interference with the freedoms of the press. The Government are proceeding cautiously in this area, reflecting the need to balance these competing rights. I look forward to more detailed consideration of this measure in Committee, and I want to make clear that we will consider carefully the arguments that are made.
I was pleased to see that Clause 1 has commanded so much support across the House. A number of noble Lords, including my noble friend Lady Walmsley, who has done so much to champion early years development, along with my noble friend Lady Perry, the noble Baronesses, Lady Jones of Whitchurch and Lady Massey of Darwen, and the noble Lord, Lord Low, spoke eloquently about the importance of greater support for children from disadvantaged backgrounds so that they can have the best start in life. That links to the point made by the noble Lord, Lord Northbourne, about the importance of parenting. We have implemented the extension to the 15 hours of free early years education for all three and four year-olds last September, and through this Bill the most disadvantaged two year-olds will also have an entitlement to 15 hours by 2013.
I thank the noble Lord, Lord Touhig, and the noble Baronesses, Lady Howe and Lady Grey-Thompson, for raising issues related to children with special educational needs and disabled children. I was pleased to meet representatives from the Special Educational Consortium last week to discuss how specific clauses in the Bill will work for this particular group of children and their families, whose needs the system, as we know, can sometimes struggle to meet. I look forward to continuing that dialogue as we go forward with the Bill.
There was much interest in vocational education, and I share the concern of noble Lords to strengthen what is on offer to young people. I agree with my noble friend Lady Brinton about the importance of vocational education, and with my noble friend Lady Stowell about university technical colleges and studio schools. The Government’s response to the excellent Wolf review and our investment in apprenticeships shows our commitment to improving the position, and I should like to reassure the noble Lords, Lord Layard, Lord Haskel and Lord Young of Norwood Green, that there is no diminution in this Bill of the Government’s commitment to apprenticeships. It is just that we think that the entitlement is not one that the Government can deliver since only employers can offer apprenticeships. My noble friend Lady Sharp put a specific question about preparing young people for apprenticeships, and perhaps I can write to her about the access to apprenticeships scheme which the Government are taking forward.
Several comments were made about the reforms to careers guidance. I believe that we have made the right decision: schools, rather than local authorities and the Connexions service, should be responsible for securing independent and impartial guidance. Although there were some dissenting voices on that, I think it was broadly accepted. The destination measure is more important than being prescriptive about precisely how careers education should be provided. It is also the case that young people themselves often prefer to get information online. Schools will be able to secure face-to-face advice if they think it is right for the children in their care. However, I understand the concerns about how we will move to the new arrangements in practice. I have no doubt that we shall return to this in Committee.
The theme of admissions was raised. The noble Baroness, Lady Jones of Whitchurch, and the noble Lord, Lord Knight of Weymouth, slightly overstated the extent of the changes that the Bill makes to admissions. We are making changes to the role of the adjudicator, making schools and local authorities responsible for implementing his decisions. However, his decisions remain binding and the Bill extends his remit to academies and free schools, a development that I would have expected noble Lords to welcome.
The noble Baroness, Lady Jones of Whitchurch, raised the issue of grammar school expansion. The Bill and the code do not allow for an increase in school selection. However, as has been the case since the Education Inspections Act 2006, a maintained school can increase the number of places that it offers, subject to consultation. We want and need good schools to be able to expand, and it would be wrong to exclude grammar schools from this.
I understand the concern raised by the noble Lord, Lord Stevenson of Balmacara, about the timing of the package of major reforms to higher education. On the fiscal context, our desire to let potential students know the financial arrangements that will apply next year as early as possible has required us to take the change forward in stages. The increases in tuition fees were settled at the end of last year. The Bill makes necessary changes to primary legislation to enable progressive interest rates to be charged.
Noble Lords asked about the forthcoming White Paper on higher education. I reassure them that it will be published shortly. My noble friend Lord Henley will seek opportunities to brief those noble Lords who are interested in the subject before we come to the relevant clauses.
Baroness Walmsley
My Lords, I briefly offer the Minister a constructive suggestion from my noble friend Lord Phillips. He pointed out that the Bill contains amendments to 15 other statutes; indeed, there are 42 amendments to the Education Inspections Act 2006 alone. It may therefore be for the convenience of the House, and would aid noble Lords in scrutinising the Bill, if the Government place in the Library of the House all the statutes that are to be amended, with the amendments clearly marked. Noble Lords could then photocopy the relevant parts of those Acts so that we could more easily understand what the amendments would do.
Children: Ofsted Report
Baroness Walmsley Excerpts(13 years, 6 months ago)
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Baroness Walmsley
To ask Her Majesty’s Government what assessment they have made of the recommendations in the report The voice of the child: learning lessons from serious case reviews, published by Ofsted this month.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, Ofsted’s report highlights the crucial importance of placing children at the centre of front-line practice in child protection. The Government expect practitioners and local safeguarding children boards to take account of Ofsted’s findings and their implications. The final report of Professor Eileen Munro’s review of child protection, A Child-centred System, which was published on 10 May, also underlines the need to refocus the system on children. The Government will respond to her report by the summer.
Baroness Walmsley
I thank the noble Lord for his reply. In his response, will he consider agreeing with Professor Munro that the current system is far too focused on finding out what happened rather than why and that, in future, the focus should be more on the underlying issues of how the social workers behaved? Will he also agree with me that it should be a statutory duty, and not just guidance, for social workers to see the child alone, in order to ascertain its wishes and feelings?
Lord Hill of Oareford
My Lords, the Government have welcomed the review by Professor Eileen Munro, which includes the recommendation that my noble friend refers to about looking at the whole way in which serious case reviews work and about moving to a more systems-based approach. The Government are considering their response and have set up a working group of practitioners across different disciplines—not just social work, but the police, education, health and other areas. We will be responding to that and will bear in mind the points made by my noble friend.
Education: Vocational Subjects
Baroness Walmsley Excerpts(13 years, 7 months ago)
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Baroness Walmsley
My Lords, I also thank the Minister for repeating the Statement, and we, too, welcome the Wolf report. We particularly welcome the Government’s commitment to improving the quality, status and availability of vocational education.
I will pick up two concerns that I heard expressed earlier today in another place. The Chairman of Committees was concerned that, although it is welcome that schools will be made accountable for how they deliver vocational education, teachers and parents may find it rather confusing to have another system alongside the English bacc for holding schools accountable. Given the Government’s commitment to improving the quality of vocational courses, once that has been done to the Government’ satisfaction, would they consider adding an additional section to the English bacc to include vocational courses, and perhaps arts and cultural courses, once they are convinced of the quality of those? Of course we all agree with the objective of giving young people a broad and balanced curriculum. Once we have achieved that quality, surely there is a case for expanding the English bacc.
Secondly, on the amount of timetable time given to the English bacc, will the Minister confirm, as his right honourable friend the Secretary of State did in another place this morning, that the 80 per cent of timetable that is supposed to be spent on English bacc subjects is only advisory and not statutory; and that schools are very open and able to allow young people to choose subjects which would means that they spend, say, 40 per cent on vocational subjects and not just 20?
Lord Hill of Oareford
I am grateful to my noble friend for her welcome for the Wolf review and her recognition of the importance of vocational education. One of the performance measures that we are keen to try to develop is a destination measure for schools and colleges so that we can see where children and young people go on to when they leave, and so that parents can see how a school or college is doing, whether it is vocational or academic.
We are keen to have more information generally. As that spreads and people are able to look at data and find their own ways of using them, the measure that my noble friend mentioned of seeing how schools and colleges might be doing, particularly as regards vocational or technical subjects, will develop of its own accord. The point of the EBacc is to try to have a small, narrow basis on which to shine a spotlight, particularly on academic subjects. It is not meant to betoken any kind of judgment and is obviously not compulsory. It is not a qualification in its own right. We want schools to decide for themselves whether it is something that they want to pursue. As my noble friend flagged, there is no statutory requirement on timetabling around the EBacc. There is, indeed, no statutory requirement that anyone should offer the EBacc at all.
Education: English Baccalaureate
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Lord Hill of Oareford
As I hope I have already indicated, I would like as many pupils as possible to have a chance to study academic subjects, if that is appropriate for them. Modern foreign languages would be a good example of that. As the noble Baroness will know, the question about their place in the national curriculum stages is part of the curriculum review. I know of the case that she makes, and I hope and believe that one consequence of the English baccalaureate will be to encourage the take-up of modern foreign languages and reverse the sharp fall that there has been in recent years.
Baroness Walmsley
Does the Minister accept that broad-brush monitoring cannot look in detail at what is happening at school level, and that the Government cannot control individual school timetabling? Is he aware that schools are already staffing up for the subjects covered by the English bac at the expense of other subjects? How can he ensure that children are not limited as to the choices that they want to make for their own future ambitions by what the school is doing and the way it is timetabling and staffing up for the English bac?
Lord Hill of Oareford
My Lords, one problem has been that children have been limited in their choices and some of that limitation has applied to some of the key academic subjects. That is what we are keen to open up. We are trying to open up more choices.
I agree with my noble friend that the Government cannot monitor every school and should not seek to micromanage those schools. The English bac is part of what we are trying to do more broadly to encourage more information about school performance. I hope over time that with the provision of more information, whether it is on the vocational or academic qualifications being offered, schools and parents will work out for themselves what is the most appropriate mix of subjects for the children in those particular schools to study.