Education Bill

Lord Hill of Oareford Excerpts

Monday 4th July 2011 Grand Committee

I look forward to the Minister’s reply. Perhaps between now and Report, he might consider convening a meeting for Members of your Lordships’ House and secondary school heads who deal with these problems regularly. We can then get some insight into their experience. I would certainly find that helpful, but I can do it for myself. Other noble Lords might also find it helpful. We are dealing not only with this question but with the issues of detention and behaviour more generally. Therefore, perhaps a meeting with a few head teachers, particularly secondary school heads, would be useful in our deliberations on these matters.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, my noble friend Lord Storey spoke for us all when he said that we all agree that exclusion should be the end of the process. We have debated this point many times. I state again that that is absolutely the Government’s position. That is why we are holding exclusion trials. We are trying to reach a point where exclusion is a far less frequent outcome for pupils and that the number who end up in this category shrinks. That is what we all want. That point was also made by the noble Lord, Lord Ouseley. I strongly agree. My noble friend Lady Walmsley set out the case for exclusion appeals to go to tribunal with her customary clarity. Other noble Lords argued in favour of retaining a right for a panel to order reinstatement.

I shall start by restating what we are proposing in this clause, which provides for independent review panels that will be responsible for hearing appeals brought by parents against the permanent exclusion of their child. The panels will have to consider permanent exclusions very carefully. They will be free to reach their own conclusions and to conduct an independent fact-finding exercise. They may then uphold the decision, recommend that the governing body reconsider its decision to take account of the panel’s findings, or quash the decision and direct the governing body to reconsider the exclusion. If the decision is quashed, the panel will have to provide the school with the reasons for its decision. At that point the governing body will have to reconsider its decision. As several noble Lords have argued, in those circumstances most governing bodies would be likely to offer to reinstate pupils.

The noble Lord, Lord Morris of Handsworth, and the noble Baroness, Lady Morris of Yardley, asked whether we assumed that the school would always be right. The answer to that question is no. If we thought that, we would not have gone for an independent review panel, as my noble friend Lady Perry pointed out. However, there may be local circumstances in which the detrimental effect on the wider school community of a pupil being reinstated means that the school decides not to do so. This, in essence, is what the whole debate boils down to, and is the root of the difference of opinion between us. As we have already discussed and will return to in more detail, in those circumstances the panel would be able to impose a financial penalty. In addition to the general safeguards associated with the independent review panel process, we are putting in place measures to protect the interests of vulnerable children, especially those with special educational needs. As we discussed earlier, parents will be able to request an SEN expert.

My noble friend Lord Lucas asked about scale. I heard my noble friend Lady Walmsley whispering but he may not have heard her. We are talking about a small number of cases. In 2008-09, there were 6,550 cases of permanent exclusion. Appeals were lodged in fewer than 10 per cent of cases. Of those appeals, around one-10th resulted in the pupil being reinstated, which is the “60 pupils” figure that we are talking about.

Noble Lords, including my noble friend, have asked why we are making changes when the numbers are so small. We do so for one simple reason: while the numbers are fortunately small, each case can create significant problems for the school, creating anxiety for pupils and undermining the position of staff. The noble Baroness, Lady Hughes of Stretford, spoke of schools being “left to their own devices”. Because of the review panel process, they would not be left to their own devices, but I am sure that she did not mean this. Her comments seemed to suggest that schools might have an agenda to exclude pupils, and I do not believe that that is true either.

[Baroness Hughes of Stretford]

I did not mean that, and I do not generally think that schools have an agenda. However, the crux of the Minister’s argument seems to be that in most of those cases where a review panel comes back to the governing body and says, “We think that this decision is wrong or flawed”—or whatever—“so reconsider”, he expected the schools to reinstate the child. What evidence does he have for that assumption?

[Lord Hill of Oareford]

The evidence was a point made by a noble friend. It is reasonable to think that where the process is conducted properly and the independent review panel comes back to the governing body saying, “We think that you are wrong for this, that and the other reason”—so that the governing body is confronted with that evidence and realises that others have reached a different view, or that they have made mistakes in how they have gone about it—most people will listen to what is being said to them. Obviously I do not have hard evidence because we do not have the system in place.

The noble Baroness, Lady Hughes, talked powerfully about the example of Lewis Hamilton. I understand that example. Because the numbers are so small, one ends up having anecdotal exchanges of that nature. When this was debated in another place, a letter from a chair of governors was quoted which reads:

“In February a violent incident occurred at our school and after an exhaustive investigation the Principal took the decision to permanently exclude both the pupils involved in the attack. In short, they had come into school after issuing threats on ‘Facebook’ and sought out an individual to beat up. Failing to find him, they subsequently violently assaulted another boy, leaving him with concussion and in a state of shock. The police wanted to pursue the matter further but the family of the victim were fearful of reprisals and refused to press charges. In March, an exclusion hearing took place and the Governor’s Disciplinary Committee upheld the Principal’s decision to permanently exclude both the pupils involved in carrying out the assault. The mother of one of the excluded pupils appealed and the IAP overturned our decision and directed that we should reinstate the excluded pupil … The whole school environment was deeply shocked”.

That is an anecdote, but is illustrative of the effect these decisions can have on other pupils and the school. I wanted to start the point about the exclusion trials because there may be an assumption that the Government want in some way to be gung ho or vindictive about this, or that we start from the point of view that heads are Victorian figures of authority who must never be questioned and their writ must always run. That is not our position. Our position is that there could be a small number of cases where the effect on the attitude of other pupils and staff is worth giving the school space to take that into account. The principal of Burlington Danes Academy gave evidence to the Education Select Committee in the other place, where she said:

“I am very pleased that the appeal panels have gone, having had a permanent exclusion overturned. A teacher was attacked with a knife and the child was able to come back to the school”.

Although incidents are fortunately rare, these events are not unique. Schools have to be safe environments where pupils can learn. To achieve this, as we have already discussed, schools need to be able to manage behaviour, and heads and governing bodies need to know that they can go about that with confidence.

I turn to the specific amendments on the First-tier Tribunal and the amendment about giving panels the power to reinstate. Clearly, requiring all cases to be taken to the First-tier Tribunal with a power to order reinstatement would defeat the purpose of Clause 4. Our proposals reform the current arrangements for exclusion appeal panels, remedying what we consider to be a weakness in relation to the power to force reinstatement. We believe that the new review panels will ensure quick resolution, which is in the interests of all parties.

I think that there was a question about the timing. We believe that the panel will have to meet and consider a case no later than 15 school days after the parent requests the review.

I was grateful to my noble friend Lord Storey for speaking to his amendment, which addresses an important issue about the amount of adjustment to a school’s budget that an independent review panel can set. Again, there are balances to be struck in wanting any financial penalty to be sufficiently high that the governing body would want to reflect seriously upon it. However, I understand my noble friend’s concern that the adjustment should take account of the size of the school and its total budget, as well as his point about a flat-rate penalty. Therefore, although there are arguments in favour of such a scheme because of its simplicity, I am happy to accept the principle behind his amendment and say that, when consulting schools and local authorities later this year on the new arrangements, we will include the issue of whether the penalty should take account of the size of schools—for example, having different penalties for primary and secondary schools.

[Lord Peston]

Will the noble Lord clarify a minor matter of logic? If he is saying that the review panel has the right to fine a school if the school does not go along with it, how can it be in the interests of any school to have its budget reduced when it is doing what it thinks is the right thing? Whatever we do, that seems to be about as absurd an idea as you could dream up. Who would suffer from having less money? Presumably, the school would buy fewer text-books or less of this and less of that. To me at least, none of this makes any sense. Why the Government have gone down this path, I have not the slightest idea. I have worked very hard to follow this issue since Second Reading but the fine business makes no sense to me whatever.

[Lord Hill of Oareford]

My Lords, the purpose is to compensate the local authority for the additional costs of the services that it would then have to pick up because the school was no longer providing them. That is the benefit.

We have heard important points raised about the Joint Committee on Human Rights and I shall make a couple of points about that. The JCHR set out its views on the compatibility of Clause 4 with convention rights. We disagree with the view that the proposal to establish review panels is incompatible with Article 6 of the European Convention on Human Rights. Our central legal argument is that the existing statutory framework around exclusion and educational provision for children who are excluded, whether on a fixed-term basis or permanently, is not determinative of a civil right, so Article 6 does not apply. In all the Strasbourg cases where civil rights have been found to engage Article 6, the civil right in question must have a basis in the domestic law of the state concerned. There is no domestic law right in the UK which guarantees the right to be educated in a specific institution. The right to an education, which is a right guaranteed at Article 2 of Protocol 1 of the convention, is not a guarantee of education at or by a particular institution. Article 13 of the convention requires that everyone whose convention rights and freedoms are violated shall have an effective remedy. As no convention rights are at issue here, we are clear that Article 13 is not engaged. We will shortly set out these arguments in more detail in a response to the Joint Committee.

I was asked about the consistency of school rules and the criteria for exclusion. The guidance is clear that a decision to exclude should be taken only in response to serious breaches of the school’s behaviour policy and if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school. The guidance is also clear that the head teacher should consider all the evidence, taking account of the school’s equal opportunities policies and, where applicable, equality legislation. We will continue to collect data on exclusions, which include exclusions by SEN and by ethnic group.

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[The Earl of Listowel]

Before the Minister replies to those questions, perhaps it might be helpful to ask another question for information. How do the numbers of exclusions break down between primary schools and secondary schools? He may already have mentioned that but I would be grateful for that information.

[Lord Hill of Oareford]

On that specific point, I do not have those figures in my head and I will try to find them and send them to the noble Earl. In response to my noble friend’s first question, the new arrangements are intended to apply to permanent exclusions. So far as his other points are concerned—again, they are generally not in the Bill—in terms of the way forward with the exclusion trials and with a point that we are trying to take forward and which we will come to later on about improving the quality of alternative provision available, the responsibility for a child in the situation he describes is unchanged and remains with the local authority.

[The Lord Bishop of Chester]

Can I press the Minister on one point, following on from the noble Lord, Lord Peston, who drew attention to the philosophical difficulty of new subsection (6)? I notice that the review panel will have the discretion to impose a fine for an adjustment in budget but it is not a requirement that the review panel would do so. I am puzzled as to how a review panel is going to decide between one case and another and on what basis. You almost then have the prospect of review panels grading the substance of their requirement that a responsible body review it according to a scale of fines. This strikes me as odd. It is in the subjunctive—that the review panel,

“may, in prescribed circumstances, order an adjustment”—

and I wonder whether the Minister would expand a little more on what the “may” represents.

[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.

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Moved by

[Lord Hill of Oareford]

60: Schedule 1, page 59, line 18, at end insert—
“In section 31A of that Act (consideration of adverse reports), in subsection (3)(c), for “exclusion appeal panel” substitute “exclusion review panel”.”

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[Baroness Morris of Yardley]

My Lords, the noble Lord is right. The power to innovate gives schools the right to ask whether they can be covered by this piece of legislation. You do that in advance; you do not do it because you want to keep a child in that night. I support what the noble Lord is saying, which is that the Government are making the case that only a small number of schools will use this power. If it is so important to them, looking across the array of legal powers they want to take themselves, if they think the most important thing is that they can keep children in on the same day, the power is there to do it. The noble Lord is absolutely right. The point is that this legislation leaves so many loopholes and so many risks of children not being safely looked after. We do not need to take that risk. If a school thinks it is important to them, they can apply for the power to innovate in advance. My understanding is that they have the power for five years.

[Lord Hill of Oareford]

I am the Minister who is in receipt of applications for powers to innovate. I have not been overwhelmed over the last year and a half by applications for powers to innovate. It may be there but the point is that for it to be there it is a more complicated process than it ought to be. Every school would have to apply individually. They apply to officials and officials put up submissions and Ministers decide and opine and then the power to innovate, like Zeus, is given. It is time-limited.

As a way of dealing with the issue, if one accepts that this is a permissive power, as it clearly is, and if you say to schools that all those that might want to use this power have to go through the rather cumbersome and protracted process of applying for a power to innovate, no one will go through the process of applying. They will say that this has been made difficult for them, whereas something that is simple, which gives them the opportunity and which applies to all—to choose either to use or not to use—with safeguards in place, seems a more rational way than making every school try individually.

[Baroness Howarth of Breckland]

Could I respectfully say to the Minister that this is not about powers and process, it is about message. If the message you want to convey is that you want to support schools and head teachers in whatever powers they wish, that is a message that will go out. But it will not be generally helpful in forging relationships between families, communities, parents and schools or indeed between children and their teachers. That is what it is about. It is about ethos and message. A better message is that these powers do exist. I am a strong believer in discipline in schools. Children learn much better if you have discipline. You need these sorts of structures in schools. But it is unhelpful to put into statute something which every speaker in this Room, even those who think we should do something, sees as unsafe and as poor communication with parents. I hope the Government will re-think how they convey that message of support to teachers without putting children into danger.

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[Baroness Howarth of Breckland]

My Lords, I briefly add a point about this being a Forth Bridge issue. It is perpetual and we must work at it all the time. I am interested in what the Government’s strategy for tackling bullying in schools is. The previous Government certainly had a strategy, which I assume the current Government will carry on and build on.

When I was involved with Childline, bullying was the most significant issue for children. I understand that this is still the case now that the NSPCC runs Childline. It came above safeguarding, relationships and issues to do with friends. It had an emotional impact on children. I know this because I spoke personally to hundreds of them over the telephone about their view of themselves, particularly young children from ethnic-minority communities, for whom this was a very confusing issue. More recently, we know that homophobic bullying has become much more rife, with names being called in the playground. Therefore, I recognise that collecting statistics may not be the Government’s way of taking this forward but I should like to hear more about what they are doing strategically. This is not something that needs a plan for today or yesterday; it has to happen all the time.

I remember advising the head of a school in the south of England where a young man had taken his own life. He said, “But we don’t have bullying in this school”. I said that the healthy position was to recognise that every school has bullying, but to have a strategy to deal with it that involves its pupils. I look forward to hearing what the Minister has to say about the strategic position.

[Lord Hill of Oareford]

My Lords, first, like others, I thank the noble Lord, Lord Collins, for raising this important issue and, if I may say so, for doing it in a very thoughtful way and getting the debate off to such a good start. He and other noble Lords have described the terrible impact that bullying can have on a child. I agree with him and other noble Lords that schools, pupils, parents and the Government must work together to tackle bullying in schools, and prejudice-based bullying in particular.

We set out in our White Paper, as the noble Lord mentioned, our clear expectation that schools should take a tough and firm stance on all forms of bullying. They should seek to identify what bullying is happening in their school and take steps to support pupils who have been bullied and prevent it happening in future. To support schools, we have issued the guidance to which the noble Lord referred, setting out their legal powers and duties, the principles that underpin the strategies used in successful schools, and the specialist organisations that can provide information to help schools to understand and tackle different types of bullying. This guidance makes it clear that primary legislation, introduced by the previous Government, already requires head teachers to determine measures to prevent all forms of bullying among pupils. The Equality Act 2010 further requires them to eliminate unlawful discrimination, harassment and victimisation and to consider how they can positively contribute to the advancement of equality and good relations.

As the noble Baroness, Lady Massey, said—and I agree with her—bullying is a problem which happens to children and young people in schools on a spectrum of severity and for all sorts of reasons. The noble Lord’s amendment addresses a particular kind of bullying, which is particularly horrid, but if one is on the receiving end of bullying all kinds of bullying feel completely horrid and vile. It is, as has already been explained, a complex issue that is too often hidden from parents and teachers, as noble Lords have said. I agree with the noble Lord, Lord Collins, that in order to tackle bullying schools must have a good understanding of what is driving bullying in their schools. That is a point that the noble Baroness, Lady Massey, made as well. We need a much broader approach. Schools must also understand the types of bullying that are a problem. It is crucial that they create an environment where pupils know that bullying is not tolerated and feel able to report it where it occurs.

The nature of bullying changes over time. If the noble Lord, Lord Rix, were here, he would talk about the concerns that he and others had about the rise in bullying of disabled children. If we had been here 10 years ago, we probably would not have had a debate about the rise in homophobic bullying. Therefore, understanding the issues and how they change over time is extremely important and will require different action in different schools. I have been told that 35 per cent of bullying goes unreported, so any system that relies on reporting alone cannot give a full picture of what is happening in a school.

The most effective schools use a range of approaches to monitor bullying. They combine evidence from incidents reported with other sources of information, such as anonymous surveys of pupils, surveys of parents and making use of school councils. We want to see more schools take a sophisticated approach that allows them to understand the problems in detail, address them and improve their approach based on evidence of what works. The new, more focused Ofsted framework will encourage schools to do this. Inspectors will have more time to look at how schools address poor behaviour, including bullying. That greater focus will flush out some of these things. The report that Ofsted will produce will provide information to parents about the detail of a school’s approach and how effective it is.

All that having been said, on the specific amendment moved by the noble Lord, Lord Collins, I fear that there are potential practical pitfalls with requiring all schools to collect and publish information about bullying in one way. That point was alluded to by my noble friend Lady Brinton. Information about bullying is by its nature fairly subjective, and the amount of bullying recorded will not necessarily depend on the amount of bullying taking place. I can envisage a situation where a low number of recorded incidents could mean that a school was exemplary at tackling bullying. Alternatively, it could mean that staff were not aware that it was going on or that children were afraid to report it.

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[The Earl of Listowel]

My Lords, having for some years taken an interest in the low status of professionals working around children, particularly the low status of social workers, I have always been drawn to the model used in the health service and in the law. Senior practitioners in the health service very much have the responsibility for bringing on new blood, having an impact on the supervision and development of juniors. There is the same approach, particularly in law, with pupillage. It is retrograde to move away from a position where teachers were perhaps beginning to take more control over their continual professional development. The GTC might have allowed for that. As all noble Lords have said, it seems extremely ironic and strange when the Secretary of State says that teachers are the key to improving outcomes above all things and then takes away the professional body for teachers without offering a strong replacement. I look forward to the noble Lord’s response.

[Lord Hill of Oareford]

My Lords, on the status of the teaching profession, I agree with everything that has been said. The issue that we are debating today is whether professionalism can be captured only in some national regulatory body or whether it can be found in other parts of the wood.

I was very struck at Second Reading when the noble Lord, Lord Knight, spoke of the success of Teach First as being great achievement of the previous Government. He could have spoken about the work of National Leaders of Education or Local Leaders of Education, or the work of the National College, which are all very good examples of professionals working to raise standards and help other professionals. He could have mentioned the growing numbers of academies taking on responsibility for helping other schools in chains or clusters. Those all seem to be aspects of a profession taking responsibility for itself. I may be wrong because I was not around at the time, but I am not sure how prominent the role of the GTCE was in taking forward Teach First, National Leaders or partnership working between schools. Having a national body of that sort does not deliver professionalism, raise standards or deal with important issues about continuous professional development. The Government believe that we need a regulatory system that is credible, effective and provides value for money—I think that there is acceptance for that today.

I do not take any particular pleasure in the ending of the GTCE. I know that it was started with high hopes and that there were many who had wanted it, as we have already heard, from the 19th century. The noble Lord, Lord Puttnam, both today and at Second Reading, spoke eloquently of the practical problems that it faced at its birth—I think that the phrase he used at Second Reading to describe his appointment was “hospital pass”. However, what is clear—I do not want to labour this too much—is its record. Since the GTCE was formed in 2000, nearly two-thirds of local authorities have never referred a case of incompetence to it, despite employers having a statutory duty to do so. Since 2001, the GTCE has concluded only 82 competence hearings and struck off 15 teachers for incompetence. The majority of our teachers, we know, are highly competent professionals, and we would not question that, but it seems unlikely that in the whole 10 years there have been only 15 incompetent teachers.

One fact that struck me as evidence of the attitude of teachers towards the GTCE was the point raised by my noble friend Lord Lingfield; that is, of the modest £36.50 annual registration fee, the taxpayer has to subsidise £33. That does not seem to be a very powerful sign of a profession that feels strongly about the role that the GTCE performs.

The noble Baroness, Lady Jones, made reference the views of the NASUWT. I recognise that its views can change over time, and they clearly did, because the general secretary of the NASUWT has said:

“I have frequently said that if the GTCE was abolished tomorrow few would notice and even less would care. I have absolutely no doubt that the Secretary of State’s decision will be warmly welcomed by teachers across the country”.

The key question is that posed by the noble Lord, Lord Puttnam; namely, what should replace the GTCE if one accepts that it has not delivered in the way that he and others had hoped at its beginning?

Perhaps I may set out what we are proposing. It is, in essence, the following. A smaller, more cost-effective body, the teaching agency, would deal only with matters of misconduct. Hearings would be heard by a panel made up of representatives of the profession and independent lay people, with a right of appeal, as now, to the High Court.

Issues of incompetence would be dealt with separately. I have always thought that the GTC’s current sanction for incompetence was a surprisingly nuclear option. Rather than a slow, cumbersome process that led painfully to a national process and ultimately—for 15 teachers—to barring from the profession, we think it would be better to have a much more flexible, local system whereby issues are resolved more quickly. We can all think of people who have not made a go of it with one employer, but who flourished somewhere else. We are therefore keen to move to a system with all the same protections in employment legislation whereby employers can exercise judgment, address problems more swiftly, and help teachers to improve.

We have been carrying out a review of the professional standards for teachers, which will give employers clearer national benchmarks for performance and conduct. We are currently consulting on simplified arrangements for performance management and tackling poor capability. That will streamline the system and remove the current duplication that employers have found is a barrier to tackling performance issues. We will also strengthen the training and support available to school leaders, so that head teachers and aspiring heads are better prepared for their management role through a revised national professional qualification for headship. We think that these measures will leave the powers to deal with teacher incompetence in a more appropriate place and help head teachers to exercise those powers more effectively than the current regulatory system does.

So far as conduct is concerned, none of this is to say that we think there is no role for a national regulator. On the contrary, we are clear that where teachers are guilty of serious misconduct, they should be referred to the national regulator for potential barring from the profession. That mechanism is cumbersome for head teachers and the regulator, because every case where a teacher is sacked for misconduct must be referred, even though the vast majority of these cases do not warrant barring. The new arrangements will be more effective by giving employers discretion, while still ensuring that the most serious cases are referred. Where cases are referred to the regulator, the Bill gives the Secretary of State a new power to make interim prohibition orders. This power was always intended for use in the very rare cases where it is in the public interest to bar an individual from teaching while an investigation is under way. Amendments 64AA, 65A 65B and 65C have been tabled by the Government in response to your Lordships’ Delegated Powers and Regulatory Reform Committee’s recommendations that the safeguard for this power be put in the Bill.

Noble Lords have asked for reassurance that the element of discretion that we are introducing will not lead to a weaker and less consistent system. It is of course important that the new system protects pupils and maintains confidence in the teaching profession. Let me say straightaway that the proposals make no change to the duty on all schools to refer any cases of serious misconduct relating to children to the Independent Safeguarding Authority.

I should also draw your Lordships’ attention to the fact that the Bill provides for referrals to the Secretary of State from members of the public. Where a parent or other member of a community disagrees with the judgment of a head teacher who has not referred a teacher dismissed for serious misconduct, they may make the referral themselves. This provides a further safeguard that teachers in the most serious cases will not in some way slip through the net.

I turn to the important issue of the Register of Teachers, which a number of noble Lords raised, including the noble Baroness, Lady Jones of Whitchurch, my noble friend Lady Jolly, the noble Lord, Lord Knight, and my noble friend Lord Willis of Knaresborough. The Government said in another place that we would consider the arguments in favour of making available data about teacher qualifications. We have listened to what the head teachers’ unions have said—that point was raised by the noble Baroness, Lady Jones of Whitchurch. I have also listened to the case eloquently made today by noble Lords, particularly by my noble friend Lord Willis of Knaresborough. It is right to say that the teaching agency will maintain a database of teachers who have attained qualified teacher status and who have passed their induction period. That seems to be an eminently sensible point and we will take it on board. That database will be available online to employers from April 2012.

Some amendments concerning surveys and statistics—CPD and so on—were spoken to by the noble Baroness, Lady Jones of Whitchurch. The Government will continue to commission research and to support the effective management, assessment, planning and development of the teaching profession. We are in the process of considering what the data and research needs of the new teaching agency and the department will be.

The CPD part of the GTCs’ work is currently shared with the TDA, and in future work on CPD will form part of the remit of the new teaching agency. However, as I have already said, over time we would tend to see more and more of that work being delivered by schools.

With regard to some of the more technical issues, the noble Baroness, Lady Jones of Whitchurch, raised the question of information-sharing between the GTCs in the devolved Administrations. Officials in the department recently met their counterparts and the GTCs from Wales, Scotland and Northern Ireland to discuss this issue. We have an agreed approach to sharing information between the four nations and will continue to meet regularly to discuss that.

On cash reserves, I agree with the noble Baroness that, if money was originally paid to the GTCE for the benefit of teachers and some of that money is still available, it should continue to be used for a similar purpose. If there were any cash reserves, we would use them for the benefit of teachers and the teaching profession—for example, to contribute to the continuing administration of the regulatory function, which a large proportion of the GTCE’s fees was spent on.

I recognise that my answer is disappointing to the noble Lord, Lord Puttnam. I never like to disappoint the noble Lord, for whom I have great respect. I hope that what I have been able to say about the register will provide some reassurance to noble Lords who I know were concerned and that, taken together, my response will enable the noble Lord, Lord Puttnam, to withdraw his amendment.

[Lord Puttnam]

I thank the noble Lord, Lord Hill. I certainly do not want to detain the Committee but wish to make two points. I was very impressed by what the noble Lord, Lord Lingfield, said and was very impressed at Second Reading by the speech of the noble Lord, Lord Lexden. I should like to touch on those for one second. As both of them know, I am conscious of the fact that the job I took on was very much a question of standing on the shoulders of giants. I had read a lot about but, sadly, never met Sir Alec Clegg, and I knew John Tomlinson very well. These were great men. They were noble and decent, and my job was to try to deliver something of their vision. I fought hard and successfully, and I think that it was a good move to bring the independent schools on to the GMC. I could not have had two more heroic figures than Ian Beer and Elizabeth Diggory to support me, and I feel very strongly that, were they both here today, they would not wish to throw in the towel at this point.

I also want to touch on Scotland, which both noble Lords mentioned. I spent a fair amount of time in Scotland and took a lot of advice from the then chairman of the Scottish GTC. He said, “Give it time, laddie. Give it time”. He was right. We needed to give it time but we have not given it sufficient time. I should possibly have listened to him even more. No one is pretending that Scots unionists are any person’s pushover; they have intense pride in the profession. My amendment is simply intended to challenge the English teaching profession to show similar pride, similar determination and a similar commitment to getting their act together. It requires them to create something of which they and we can be proud, and we can be very proud that we protected it when it was under pressure. For the moment, I am happy to beg leave to withdraw the amendment.

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Moved by

[Lord Hill of Oareford]

64AA: Clause 8, page 12, line 22, leave out “2(3)” and insert “2A”

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Moved by

[Lord Hill of Oareford]

65A: Clause 8, page 13, leave out lines 32 to 34

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Clause 8, as amended, agreed.

[Lord Hill of Oareford]

My Lords, this may be a convenient moment for the Committee to adjourn until Wednesday at 3.45 pm.

[The Deputy Chairman of Committees (Lord Haskel)]

My Lords, the Committee stands adjourned until Wednesday at 3.45 pm.