Education Bill

Lord Brougham and Vaux Excerpts

Monday 4th July 2011 Grand Committee

[The Deputy Chairman of Committees (Lord Brougham and Vaux)]

My Lords, we have done as much as we can to make more room for your Lordships by providing smaller chairs. That is all that we can do. If noble Lords consider that it becomes too hot in this Room, I shall allow them to take off their jackets if they so wish. It is the Chairman’s prerogative. If there is a Division in the Chamber, I shall ask the noble Lord who is speaking at the time to cease speaking and we will resume after 10 minutes.

Clause 4 : Exclusion of pupils from schools in England: review

Amendment 37

Moved by

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[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.

[Baroness Hughes of Stretford]

My Lords, I pick up initially on some of the points that were made previously, and which the noble Baroness, Lady Walmsley, has rehearsed. We start from the recognition that a permanent exclusion can have a significant impact on the life of the excluded child, both in the short term on their education, and in the long term. In other words, a permanent exclusion is a very significant decision in the life of that child. It is very important that, in taking such profoundly significant decisions, it should be evident to everybody involved, including parents and children, that there is a process of natural justice whereby schools not only act fairly but are transparently seen to act fairly.

We have all variously recognised some of the dilemmas and difficulties for schools. However, exclusion without the right of appeal to an independent arbiter, with the possibility of reinstatement, is not a positive example of fair treatment. It sets a bad example to the very children whom we are seeking to influence, telling them that this is how things can be done when it suits the authorities.

My second point is one which we started to rehearse when we debated this issue last week but which I think we need to explore further. We know that, even now, schools permanently exclude a disproportionate number of very vulnerable children from specific groups. Last time, we talked a lot about children with special educational needs and disability, and we heard the figures for the number of those children who are excluded. However, there are other groups. The Runnymede Trust has pointed out that in 2008-09 more than 16 per cent of all black Caribbean boys were excluded compared with 8 per cent of white boys—that is, double the proportion of black Caribbean boys. Gypsy, Roma and Traveller children have similar problems, as do looked-after children and those in care.

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[The Deputy Chairman of Committees]

My Lords, some of you might have heard buzzing noises, sounding like bumble-bees, coming out of the speakers. That is because some people have got mobile telephones in their pockets and they are too close to the microphones. Could we leave our telephones well away from the microphones or even switch them off for a little while?

[Baroness Morris of Yardley]

My Lords, I support the sentiments behind these amendments, and those in the opening remarks of the noble Baronesses, Lady Walmsley and Lady Hughes. Some of these amendments are quite technical, but there is something underpinning them in that the proposals before us are, first, unjust, and, secondly, not the best way of dealing with a significant problem. In particular, I support the group of amendments that give a right of reinstatement if an appeal should be successful.

I invite the Minister to revisit the Government’s assumptions that brought about this group of amendments. It strikes me as the sort of thing that is great in opposition but which you hope that people have realised is not very good by the time they get to government. Its starting point was something that we can all share: there are children whose behaviour is such that they ought not to be in schools. They ruin the educational chances of other children and make the lives of teachers a misery. Nobody ought to have to put up with that.

There is another starting point that I support: that the head needs control of their own school. They need to be able to set the rules and regulations. Within a framework their writ must run. That is the nature of leadership. Where this went wrong to some extent is that there is a feeling out there that the problem of reinstated children is bigger than it actually is. Somebody will quote the figures at some point, but it is not a big issue. It does not happen often. On most occasions, the tried and tested system which will now be repealed completely has worked well. Schools, parents, governing bodies, head teachers and pupils will on the whole say that it works well. In any structure in a social organisation like a school or society, there will be times when it does not work well, is a bit frayed at the edges and you might want to second-guess a judgment. We should always try to make that better, to improve the law and improve the process.

I do not know how the Government have concluded that this is the way forward from there. What I really want to test with the Minister is that there seem to be two either/or assumptions underpinning this bit of legislation. The first is that heads are always right and pupils are always wrong, which is a case of infallibility all over again. The second is that even if heads are wrong, we must not admit it. If one of those two assumptions does not underpin this set of amendments, I do not know what assumption does. Both are deeply flawed. I hope that I do not have to say more than “heads are not always right”. I have taught where heads have made the wrong decision about exclusion; sometimes there have been sets of circumstances. It has been absolutely right that the child has been reinstated, and the school has not collapsed. Nobody can say that the head is always right.

I agree about the power of the head, but it must be about having a set of rules that the school community and the parents have bought into, and about enacting those rules. I do not agree with this notion of leadership and headship which says, “I can make the rules up as I go along, and if I decide that you have broken them then I can act accordingly”. It is only by giving that sort of power of rule-making to the head that this legislation makes any sense.

Let us say that we do not agree that heads are always right. I sense that where the Government are coming from is that, in order to support heads, we must support their every decision. That is a miscalculation and a misjudgment, and I choose my words carefully. There are heads in this room who will tell me whether I am right or wrong in this but, to be honest, if a head teacher needed this sort of legal protection to keep order and discipline in their school, I would question the quality of the school leadership. A half good head teacher can manage a reinstatement and the house will not fall down. What seems to be feared here is that, if a reinstatement goes ahead, the head will lose control and authority within the school. Good heads do not do that; they manage it, because exclusion is not the only way in which to ensure discipline and good behaviour in schools.

If we make laws to protect weak heads so that they never have to admit that they are wrong, we will not be producing laws that are good for discipline in schools. We need laws that give heads the right to run their schools, and in our utterances and judgments we always need to support heads in what they do. They live in the real world; the children live in the real world; the parents and governors live in the real world, and nowhere else in the real world is someone proven innocent but not given the right to reinstatement.