Education Bill

Lord Black of Brentwood Excerpts

Tuesday 14th June 2011 Lords Chamber

[Lord Black of Brentwood]

My Lords, I want to address Clause 13, which introduces reporting restrictions on alleged teacher misconduct and has serious repercussions for freedom of expression and the rights of children. In view of some of the contributions this evening, I fear I may be a lone voice but I will have a go. As this matter involves the media, I declare an interest as executive director of the Telegraph Media Group.

The Bill creates a new offence of publishing anything which might lead a member of the public to identify a teacher alleged to have committed a criminal offence against a pupil until he or she is charged with an offence, and unless a charge is made the ban on publication lasts indefinitely. The effect of that will be to give teachers accused of crimes against pupils unique rights of anonymity that no other group enjoys and it will remove from vulnerable children the right of every other citizen to publicise a grievance or a complaint.

It will be argued that there are exemptions in this Bill—if the teacher gives consent to identification or if a successful application is made to a court to lift the restrictions. Given that this legislation impacts on free speech, remarkably there is no public interest defence. Let us dispatch these exemptions. The prospect of a teacher who has done wrong voluntarily consenting to identification must be next to zero, and the chances of a court lifting restrictions will be low, especially in the absence of a public interest defence. Furthermore, applications to the court are likely to be rare: they are expensive and local newspapers facing serious commercial pressure may not be able to go down that route. Those exemptions are worthless.

Let me deal with the substance of the issue. The truth is that Clause 13 is unprecedented, unnecessary and unworkable. First, it is unprecedented because it gives to a particular group of professionals a right that no one else enjoys. Yes, it is appalling if a teacher is falsely accused of a crime—and I take to heart the comments of my noble friend Lady Perry—but that happens in other careers involving children too. If this reaches the statute book, who really believes that the move towards greater secrecy in the justice system will stop there? We had a glimpse of that in the speech of the noble Baroness, Lady Jones of Whitchurch. The GMC has already started a campaign arguing that doctors called before its disciplinary committee to answer charges of abusing a patient should not be identified. Interfering with the media’s ability to report in this way is therefore profoundly dangerous—the thin end of a wedge that will lead inexorably to much wider reporting restrictions that will undermine the long-held principle that, for justice to be effective, it must be open and transparent.

Those principles exist for good reason because not all criminal misconduct is prosecuted. Teachers accused rightly of assaults might never be charged by the police due to lack of evidence or because of failure to take a whistleblower seriously. A teacher might be dismissed from a school and, for whatever reason, the school and those involved want no publicity. Allowing him or her indefinite anonymity has frightening implications for the welfare of children. As I understand it, it would also be an offence to name a teacher accused of a crime even if he or she were identified at an inquest or in a civil court action. The media or a parent would have to apply to another court to lift the reporting restrictions, as would anyone who wanted to publish the findings of an official inquiry. In an open society, that cannot be right.

We are legislating to introduce an era of silence where children are concerned, when all the evidence of the last few years has underlined the pivotal role of a free press in uncovering scandal and abuse, a point the NSPCC has consistently championed. Publicity often helps others to come forward with evidence. Instead, we are saying to children: “Unlike any other group in society, your complaints are treated as false until a charge is made”.

My second point is that this ban is unnecessary and disproportionate. Where is the evidence that media reports generate false accusations? Newspapers have consistently pressed the Government for evidence of such a link but none has been forthcoming. Perhaps that is because it was only in 2009 that the Department for Children, Schools and Families said there was no case for teacher anonymity, when giving evidence to the Select Committee inquiry into allegations against school staff. In the same inquiry the NASUWT confirmed that the biggest issue is not anonymity but the management of complaints and CRB practice—something the Government are rightly taking action on.

A vital principle in a parliamentary democracy is that Governments should only interfere with rights to free speech as a last resort. Here we are embarking on an insidious course, without evidence of the need for it and without any attempt to see if there are other ways to deal with this problem short of draconian legislation.

The evidence the NASUWT gave to the Select Committee also highlighted that this legislation would do nothing to stop the problem of innuendo at the school gates, which leads me on to my final point. This legislation is unworkable because in 2011 chatter among parents and gossip among pupils does not stay as that but is retailed on the internet and in social media. In dealing with this issue, Facebook and Twitter are extensions of the school gate, and this legislation will be powerless to stop that. Have the Government not learned from the fiasco of the super-injunctions that it will be impossible to stop internet rumours that are likely to be far more damaging than a responsible media report? Indeed, if the name of a school appears on an internet site, but without the teacher being identified, totally innocent individuals could be maligned.

For that reason this ban might actually make matters worse. Newspapers and broadcasters are strongly constrained by what they report about allegations by the laws of libel, contempt and malicious communication. Schools and the police are bound by rules of confidentiality. If newspapers cannot report these matters, parents may take them online where few effective constraints exist. The Government will be replacing responsible journalism that takes care before reporting allegations with the potential anarchy of the internet. Is that what teachers really want?

Everything about this clause is wrong. It will not work. It could actually make matters worse for teachers. It undermines the rights of a vulnerable group, and it has profound implications for open justice. I cannot put it better than the noble and learned Lord, Lord Justice Steyn, who said in his High Court ruling in the case of Reynolds v Times Newspapers:

“Freedom of expression is the rule and regulation of the speech is the exception requiring justification ... if it is underpinned by pressing social need”.

No such evidence or justification exists here and I urge the Government to think again. If the Government intend to press ahead, key amendments need to be made, including the provision of a public interest defence and the exemption of courts and other statutory bodies from the automatic restrictions. I hope we can deal with these points in Committee.