Education Bill

Lord Black of Brentwood Excerpts

Wednesday 6th July 2011 Grand Committee

[Baroness Hughes of Stretford]

Clause 13 introduces into law restrictions on the reporting of alleged offences by a teacher in a school up to the point at which that teacher is charged, if they are charged, and covers matters concerning the possible breach of those reporting restrictions and possible defences of those breaches. Noble Lords will know that this has long been an issue and that teachers organisations, and head teachers organisations, to some extent, have talked about it. In fact, the previous Government responded positively to the evidence put before them but decided not to legislate. Instead, they revised the guidance issued to the Association of Chief Police Officers advising police forces not to release the identity of individuals to the media prior to formal charges being brought. The Labour Government also brought in procedures to speed up the processes of investigation because that is another important issue.

I think the general view is that those two measures have had a significant impact and that the problem of reporting of—often very pernicious—allegations about teachers and people in schools has significantly gone away. However, the Government have decided to legislate and, because we are generally sympathetic to the arguments put forward, we do not oppose the legislation. What we are concerned about is that, having decided to legislate, which is a very important step because it is curtailing the freedom of the press by statute, the Government have decided to do so for teachers only. If you are going to legislate on such an important matter rather than go down the route that we have already gone down, which has had a great impact on the behaviour of the media through self-regulation, we have to be very clear about the principles on which you are legislating, about the evidence that is the basis for that legislation and, therefore, on where you draw the line. Those are the key issues that the Government have to speak to us about today to justify why they think the legislation is appropriate for teachers and for teachers only.

I think we all accept that if people are working with children, particularly in a situation such as a school where it is very concentrated and there are large numbers of children, they can suffer extreme difficulties from unproven allegations, even if no charges are eventually laid because it affects the way they do their job, it generates mistrust from parents and people are often assumed to be guilty, even if the police decide there is no substance to the allegations and charges are not brought. We have stories from the past of longer term difficulties when people’s employability has been adversely affected by these kinds of allegations.

We are also aware that it is not just teachers who are in situations where those kinds of allegations can be made. Changes in schools, particularly over the past 10 years or so, have made this very significant. There is a wide range of people now in schools who are doing very similar things to teachers in so far as they are in close contact with children and are often dealing with very challenging children with special educational needs or behavioural difficulties. It is not only teachers who are supervising children. For example, support staff supervise children in non-classroom situations in the school, in the playground, after school and in after-school clubs. It will not necessarily be teachers in those situations. Clearly, those same arguments apply in sixth-form colleges and further education colleges. In a previous day in Committee, I think that we heard the noble Baroness, Lady Sharp, advise us when we were discussing searches that it would probably be security staff in colleges who would undertake searches, not the qualified further education lecturers. The reach of this provision is therefore very restricted.

Also, as I understand from reading it, the provision would not include—the Minister will correct me if I am wrong—people who are teachers but who are providing supply cover, or who are on a temporary contract, or who are teaching in an off-site situation. As it stands, in its very limited reach this proposal does not relate to the real world in schools at the moment or to the wide range of people who are dealing in very close contact with children. In the other place, the justification which the Minister there gave for the limited reach of the Government’s proposal was that they had evidence of the impact on teachers but not to support the application of the legislation to school support staff, or to teachers in sixth-form or FE colleges. In fact, UNISON has carried out its own survey using the same question that the Association of Teachers and Lecturers used, which has provided some of the evidence to support a case for teachers.

The results of that survey showed that nearly half of all the respondents had experience of support staff in schools facing allegations from pupils, 33 per cent of which resulted in an investigation. Twenty per cent of those accused were suspended and 15 per cent were reported to the police, so there seems to be a substantial body of evidence to suggest that these are also issues for significant numbers of school staff. Similarly, in relation to lecturers and other staff at FE colleges, the Association of School and College Leaders has also provided a wealth of evidence and case studies, some of which were rehearsed in some detail in Committee in the other place. I will not detain this Committee now with those examples, as they can be read in the Hansard report from that Committee, but there is evidence of lecturers in sixth-form and FE colleges experiencing the same kind of problem.

My Amendments 73E to 73H, 73J and 73K would therefore simply extend the Government's proposals on reporting restrictions on allegations, which cover the period up to the point only of the person’s being charged, to non-teaching school staff and to lecturers in sixth-form and further education colleges. The noble Baroness, Lady Walmsley, has some amendments in this group as well and I look forward to hearing her arguments. I think she is supporting the extension to sixth form and FE lecturers with her Amendment 75, but in her Amendment 75A she is proposing “Wait and see—let's look again in two years” about school support staff.

I simply conclude with the points that I made right at the beginning: if we are going down this road of applying legislation to restrict the reporting in the media of certain allegations, it has to be on the basis of principle and of evidence. In that regard, I cannot see that the case can be made only for teachers. The Government have got themselves potentially in a difficult position, because I could of course go further. I could talk about people working in residential care and in children's homes, or about people working in a whole variety of situations—in young offender institutions, for example. To be quite honest, that is the problem that the Government have created for themselves here. Understandably, once you start to use legislation, other groups will say, “We are in the same situation so this should apply to us too”.

This is an education Bill and, for the moment, I shall not use those arguments to that extent. I feel that there is no justification for limiting these provisions to teachers only and, as regards education, these other groups of staff ought to be covered by the same protections. I beg to move Amendment 73E.

[Lord Black of Brentwood]

This is not the best day for British journalism, I fear, so I almost hesitate to declare an interest as a director of the Telegraph Media Group and chairman of the Press Standards Board of Finance. I spoke on these matters at Second Reading, expressing my concern that Clause 13 is unworkable, unnecessary, has huge, significant ramifications for open justice, sets a damaging precedent and, above all, is based on scant evidence. I am very glad that the noble Baroness raised the issue of evidence because it is very important to this clause.

Of course, it is appalling if anyone, not just a teacher, is falsely accused of a crime, but the transparent pursuit of justice is vital too, as it is part of the constitutional compact between the courts, the media and the public. Justice can be effective only if it is seen to be done, and that is why the media is always opposed to reporting restrictions, except in the most pressing circumstances and where there is overwhelming evidence of need. I fear that my interpretation of the research and data in this area is that that evidence is incredibly thin.

On Monday, we heard from the noble Lord, Lord Puttnam, about the evidence-based approach to policy. He said,

“Creating policy involves learning lessons from the past and gathering evidence from the present”.—[Official Report, 4/7/11; col. GC 52.]

I could not agree more. The best evidence that we have is from the Department for Children, Schools and Families’ submission to the 2009 Select Committee inquiry into allegations against school staff, which concluded after careful analysis that there was no case for teacher anonymity. Subsequently, I have checked with some other bodies that might know about it.

It is important that the Committee looks at the issue of evidence. I have talked to the Press Complaints Commission, which has other issues on its mind at the moment, but it looked at the cases it had dealt with over the past four years and could find only two relating to teacher anonymity where there may have been a breach of the industry’s code. The secretary of the code committee of the Press Complaints Commission confirmed to me that there had been no representations from teachers' organisations to the code committee to deal with this issue. I talked to Mr Tony Jaffa of Foot Anstey, one of the leading solicitors in the country dealing with local media, who wrote to me to say that:

“My colleagues and I do not have any recollection of any regional paper ever having received a complaint from a teacher in this context … We have no evidence to support the proposed change … If this were a real problem I would expect to have seen post-publication complaints, PCC complaints, and/or libel claims. We have not seen any of these”.

The noble Baroness referred to a UNISON survey, which was very similar to the results of the survey conducted by the Association of Teachers and Lecturers, which points to a high number of allegations that have been made against staff. Among that huge potential number, the number of actual press reports is tiny. This clause is all about restrictions on the media, so we have to look at the number of press reports that follow, not at the number of allegations made within schools and further education institutions. If there is precious little evidence of a problem relating to schools, I can find even less rationale for extending this to further education institutions and to other staff as a number of these amendments seek to do. I certainly cannot find any in the 2009 Select Committee inquiry.

The other point of great concern to me is precedent. At Second Reading, I warned that Clause 13 was,

“the thin end of a wedge that will lead inexorably to much wider reporting restrictions”,—[Official Report, 14/6/11; col. 734.]

that would have a profound impact on the local media in particular. If we extend the terms of Clause 13 beyond teachers to other members of staff and to further education institutions, as Amendment 73 and subsequent amendments seek to do, as the noble Baroness has said, why stop there? How do the Government explain where the dividing line is, especially when they have already said, as they did in the schools White Paper, The Importance of Teaching, that they would,

“consider whether these measures should also be applied to the wider children's workforce”?

In 2009, a survey among local authorities found that allegations—I make the point that it is allegations and not media reports—were an issue across a number of employment sectors involving children, including social care, health care, foster carers and the police. That already brings another significant potential group of people within this ever-expanding set of potential reporting restrictions. As the noble Baroness said, there are other careers where individuals are sometimes alone with children. If we accept the extensions to Clause 13, what is the logic in excluding them? The list could include hotel staff, babysitters, dentists, vicars, scout masters and museum staff. I do not know where it would end.

We can already see it happening in other areas, which is why this clause and this debate are so important. The General Medical Council has suggested that open hearings should be replaced by private discussion between the GMC and a doctor intended to reach mutual agreement on,

“the measures necessary to protect the public without the need to refer the case to a public hearing”.

That would apply even in the most serious cases—possibly involving children—that end up in the suspension or removal of the doctor from the register.

It is not fanciful to see that unless we draw a strict line here, we will end up with a wide range of reporting restrictions fundamentally affecting the rights of children that, in effect, usher in a new age of secrecy and cover-up where crimes against children are concerned. As the noble Baroness has said, we interfere with media freedoms in this area at our peril, not because of their impact on the media but because of the impact on the justice system. That is why the groups of people covered by this legislation should not be extended but should be kept as tight as possible.

Finally, I know that my noble friend will speak to Amendment 75A, which is on a mandatory review of reporting restrictions. I am all in favour of a review of the efficacy of the legislation eventually passed in this area because I genuinely believe that it will prove to be unworkable, particularly with regard to issues to which we will turn in the next group. A review must be even-handed and must take evidence from all those involved; that is, the media, children’s charities, the police and so on. As I read it, the amendment seeks to direct such a review even before there is any evidence, which cannot be right. By all means, let us look at this again if this legislation reaches the statute book. I think that it will prove to be essential, but it needs to be a proper and independent review.

[Baroness Hughes of Stretford]

The noble Lord seems to be arguing against any reporting restrictions. Is he arguing against the inclusion of Clause 13 or for the Government’s case that this should be restricted to teachers? If so, given the nature of his arguments, how would he justify this for teachers and for teachers only?

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[Lord Black of Brentwood]

My Lords, that is a very easy question to deal with. I am opposed to the inclusion of Clause 13 in its entirety. That was the basis of the remarks I made at Second Reading. However, I sensed the mood of the House on that day, and of your Lordships, that it is unlikely that the removal of Clause 13 will ever happen. These amendments, and amendments to which we will come subsequently, are meant to deal with the reality of the situation.

[Baroness Jolly]

My Lords, these Benches certainly welcome Clause 13. Our Amendment 75 extends Clause 13 to include sixth-form colleges and colleges of FE. In the interest of moving on, I shall not repeat most of the arguments already made, although I will add one point. As a result of the Woolf report, staff in colleges of FE will teach young people aged between 14 and 16 on vocational courses. This is to be applauded as CFEs are far better places to deliver vocational courses, but it means that, for the first time, much younger pupils will be in those colleges. They deserve the same level of protection as afforded by Clause 13. This provision adds a bit more meat to that.

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[Baroness Howarth of Breckland]

The difficulty about the police applying to a court is that they will not know that there are other issues on which to move forward if other children do not come forward. That is the problem. Children come forward because they know that something is happening. The police consider that situation, and then they apply to the court. If they do not have that information, they will not apply.

[Lord Black of Brentwood]

My Lords, I wish to deal with an important point in this regard. My noble friend rightly says that the court has the power to lift a restriction on an application, but the legislation directs the court to have specific regard to the,

“welfare of the person who is the subject of the allegation”.

That is a very dangerous measure. My noble friend Lord Phillips will be moving amendments on this matter in the next group, but it is not as straightforward as just going to the court, as the court could already have a predetermined view.

[Lord Phillips of Sudbury]

My Lords, I was going to keep my powder dry until the next group of amendments. However, I have a problem with Amendment 75A in that it seems to me to involve a one-way inquiry. If it were a case of the Secretary of State having to report to the Houses of Parliament on reporting restrictions, whether they be good or bad, effective or ineffective, I would be wholly behind it. However, it is a one-way ratchet; the Secretary of State can report only on whether to extend the restrictions.

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[Lord Lucas]

My Lords, I can remember an occasion that illustrates my noble friend’s last amendment. Some boys went to a headmaster and asked if they could have a videotape to use for a project they were doing. He picked one off a shelf and gave it to them, and it was the evidence. People do put these things in the public domain by mistake. I particularly welcome my noble friend’s Amendment 73HJ. There has to be the right for pupils and parents directly affected by this to discuss things. It is the obvious way in which things will come forward. Anyway, it is going to happen. You cannot criminalise that sort of conversation within a school community about something that is happening within the school, so it has to be possible. It will be done on Twitter and on Facebook. These things will not spread. No teacher is Ryan Giggs. There is no national interest in the person’s name. They will remain in a little corner of the social media, of interest to pupils in the school and to the parents of the children, and that is where it will remain. No great harm will be done because, frankly, the school community knows already. I do not see any objection in the wider media carrying just a basic statement that so-and-so has been accused and has taken leave of absence from the school as a result. That is scarcely something that in that form is going to hit the national media, but it at least means that the basic facts that that has happened are, as they should be, a matter of public property.

Surely the evil we are trying to prevent is a newspaper aggressively trying to dig up information about a particular individual in order to make a story, which you might call a human interest story, for people who have never heard of this person and have no interest in him otherwise. It is just a composed story that might be about anybody, but it is immensely harmful to the teacher concerned. That is the sort of thing that we are trying to prevent. The fact that an allegation is made is there and is fact. It should surely not be hidden. We are not in super-injunction territory. I find my noble friend’s amendments very persuasive.

[Lord Black of Brentwood]

My Lords, I support the amendments tabled by my noble friend Lord Phillips and will speak also to Amendment 73M. Just for the sake of the record, I draw attention to the interests I declared earlier. I was very struck by what the noble Baroness, Lady Howarth, said earlier. She said that this clause as currently drafted is unworkable and that unworkable legislation simply brings the law into disrepute. My noble friend has just said that we are not in super-injunction territory, but I fear that, because of the impact of digital media, which I shall talk about in a moment or two, we will be in super-injunction territory at a sort of local level that will cast this legislation into that disrepute.

If we are to have legislation, at least let it be workable. I believe that the amendments tabled by the noble Lord, Lord Phillips, try to do that by importing into new Sections 141F and 141G the concept of the public domain and the public interest. The exclusion of any mention of the public interest in Clause 13, as it stands, is quite remarkable. I cannot think of any other legislation dealing with incursions into the freedom of the press and freedom of expression which do not have a public interest defence. That must be put right.

In my view, these amendments are crucial because the real problem with this clause—the unworkability factor—is that it takes no account of how allegations are spread and the damage that they can do to schools and to innocent teachers in the absence of responsible press reporting. As I said at Second Reading, my concern is that this legislation will simply drive innuendo and rumour underground and new Section 141F(12) will encourage that. Its definition of “publication” is designed to catch the media, which is not at the root of any mischief here, by tying it to material addressed to the public at large. That is the wrong target. The Minister in another place, Nick Gibb, made it clear that this legislation is not intended to capture private conversations, which include e-mail exchanges, texts, Facebook postings, Twitter and all sorts of other mechanisms. That is precisely where allegations and innuendo, which it seems to me that the Government want to be at the root of this legislation, will build up, now that Clause 13 makes it impossible for them to be dealt with in a responsible way in the press, which is constrained by the laws of libel and contempt. In a short space of time, the weight of individual private exchanges may mean that in a small school everyone knows when a teacher has been accused of something, but only the local newspaper will be unable to report it.

[Lord Knight of Weymouth]

The noble Lord makes a really powerful point. I am sure that this legislation was drafted before super-injunctions and before the Twitter activity around certain footballers whose names were disclosed and the mischievous and false rumours spread on Twitter about other celebrities and what they may or may not have been doing. Is that not all the more reason for the Government to look at this again?

[Lord Black of Brentwood]

I could not agree more with the noble Lord. It is a point that I would like to address. Who could imagine what would happen if rumour or innuendo, which turns out to be false, circulates at the school gate about a teacher. There may indeed have been an assault, but perhaps the wrong teacher has been accused in the diaspora of cyberspace, or perhaps, as the noble Baroness said earlier, two teachers have been named in allegations that have been pumping around parents. The only way for teachers to clear their names would be through responsible publication in a local newspaper. That would be in the public interest, and it would reflect the fact that the material is already, in effect, in the public domain because of digital media.

If this law is not to become the same sort of fiasco as the super-injunctions, those defences need to be put in here. I believe that the proposed amendments to this clause will act as a vital pressure gauge and allow accurate and fair reporting where the public interest demands. They will also help some of the massive legal uncertainty that flows from the definition of publication which, by experience, the courts, particularly the magistrates' courts, are not good at dealing with. Often these issues are beyond their competence.

These amendments also mirror exactly the terms of Section 12 of the Human Rights Act, which deals with interference in the European convention right to freedom of expression. That legislation directs a court to have particular regard to the extent to which,

“(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published”.

This legislation, which is a substantial incursion into the convention right, should have exactly the same defences as the Human Rights Act, especially as it is certified to be in accordance with the terms of the Act, and these amendments seek to secure that.

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[Lord Black of Brentwood]

My Lords, I will delay the Committee for just one minute. I originally raised these matters at Second Reading and I wanted to say a few words in support of the noble Lord, Lord Phillips, who has made a compelling and overpowering case. I am also mindful of the remarks that the noble Baroness, Lady Howarth, made earlier about the work of the NSPCC, Childline and others involved in this area.

During our debate in Committee on Monday, I was struck by something that the noble Lord, Lord Peston, said. He said that,

“the fact that these people are young children does not mean that they have no human rights. None of us would tolerate being treated in this way on anything else that we encountered as adults. Whatever was going on, and if we were doing something wrong, we would certainly expect to be dealt with with due process and the right of appeal against anything that was relevant”.—[Official Report, 4/7/11; col. GC 8.]

To sum up, my main concern with this clause is that what we are doing—this is the real mischief of this clause—is removing from vulnerable children the right that every other citizen in the country enjoys, which is to publicise a grievance or complaint. We should be very clear about that. We are saying to children—this is where the work of the NSPCC and others has been so important in previous years—“Unlike any other group in society, your complaints are treated as false until a charge is made”. I do not believe that that is what the Government want. I support the noble Lord, Lord Phillips.

[Lord Hill of Oareford]

My Lords, I will also be brief as we have already rehearsed many of the arguments this afternoon, so I will not detain the Committee for long. The noble Baroness, Lady Hughes of Stretford, referred to assembling the information that we have. We will, of course, do that although some of it is slightly harder to come by, given its nature.

We have moved a long way in the course of the afternoon—this often happens in your Lordships' House—from the views that have been expressed to us all by the unions and by teachers. Some of their figures as regards the scale of false allegations are so high that I do not believe them in the sense that this is the sort of story that people relate to other people and so it spreads. Like me, the noble Baroness will have seen survey research which shows that 50 per cent of teachers claim to know someone who has been the subject of false allegations. That seems to me a suspiciously high and precise figure. One should not suggest that there is not a problem that needs to be addressed or that a consequence of this measure is that child protection and safeguarding will be weakened.

I support the great British media but arguments have been adduced in relation to the crusading role of the media in child safeguarding issues. I can think of many cases where that is true but I can also think of many where the crusading purpose has been directed at increasing newspaper sales and producing salacious articles. We must be careful not to go too far in taking the moral high ground and taking our eyes off some of the practical issues which teachers and head teachers tell us that they face and fear. We should see this provision as part of a broader range of measures to try to make teachers feel that they have the backing of us all in their difficult job of maintaining order and discipline so that children can learn. One must not lose sight of that point.

My noble friend Lord Phillips quoted powerfully from the exchange between the JCHR and the Secretary of State. Paragraph 1.48 of the JCHR report states:

“However, we are satisfied that the evidence and justifications relied on by the Government are sufficient to justify the imposition of such reporting restrictions as a necessary and proportionate means of achieving the legitimate aim of protecting the reputation and rights of teachers and supporting teachers in their role as the professionals responsible for classroom discipline”.

It is worth recalling that the JCHR concluded that the evidence—not as complete as my noble friend would like—led it to that conclusion.

In the course of this afternoon, there have been forceful arguments in favour of extending the clause from the Benches opposite and from some of my noble friends. There has also been opposition to its current breadth. I am aware of the concerns. I would be happy to speak to my noble friend about the earlier issue and try to provide further reassurance. As I have said, we will bring forward the review of the impact of these provisions and we will continue to monitor closely the issues that have been raised.

I argue that these provisions would not enable a teacher to get off scot-free from wrongdoing. Safeguarding duties remain in place. The clause states simply that anonymity should remain in place until someone is charged. I have a difference of opinion with my noble friends Lord Phillips and Lord Black about the effectiveness as a practical act of recourse of the PCC or of a libel action. I understand the arguments of both noble Lords—one with great experience as a lawyer, the other with great experience of working with the press. In previous situations, people have always said, “There’s always the PCC”, or, “You can always bring a libel action”. I am afraid that I do not believe that the PCC is an effective protector of people, and I do not believe that bringing a libel action would be a practical course of action for a teacher who has had all kinds of awful things going on and their reputation traduced.

Those are the arguments in favour of the clause. I have listened to the points raised by noble Lords on all sides this afternoon. I will try to provide some more statistical information, which I hope will help the Committee. I will also reflect on the points that have been made. On that basis, I beg to move that Clause 13 stand part of the Bill.