Lord Hill of Oareford
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The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, I understand the intention of the amendment, moved by the noble Baroness, Lady Hughes of Stretford, which is to promote co-operation and collaboration between schools to improve behaviour, attendance and standards. I agree with her about the importance of this. It goes with the grain of the existing culture in schools, which by its nature tends to be collegiate. I also agreed with her when she said that these kinds of partnerships work better when they are formed voluntarily, when they bubble up and take the shape that individual schools want them to take. I hope that I am as keen as her to encourage co-operation and schools learning from each other.
Where we differ—perhaps the only point in this amendment—is that I am not convinced that government guidance on these issues will deliver change locally. We think that it is best led by professionals on the ground. I accept that in some cases, legislation can help, such as for example, the duty on all state-funded schools to participate in a fair access protocol, which will remain. That is a good example of a solution to a specific problem. But we know that the previous set of guidance on behaviour and bullying from the department ran to some 600 pages, which is difficult for schools to take on board. The direction that we seek is to help schools to learn from each other. I just want to mention a few of those today. One would be our proposals for teaching schools. We are hoping to set up a network of teaching schools around the country and have announced the first 100. Those schools have a track record of working with others to raise standards for children and young people beyond their own school.
Under that model, groups of schools will work together within a teaching school alliance supported by the leadership of a teaching school. These alliances can work across local authorities and involve many different types of organisations. This first wave of teaching schools will be given the opportunity to take the lead in a variety of specialist areas including improving pupil performance and behaviour in schools. We have also asked the national college to build on the work started under the previous Government, designating excellent head teachers to be local and national leaders of education who will work to support underperforming schools. The college is now creating a new group of specialist leaders in education. They will be outstanding leaders in their particular field of expertise, which could include pupil achievement, quality of teaching or behaviour management. Teaching schools will designate specialist leaders and deploy them into schools that need support, thus ensuring a school-driven approach to improvement.
The noble Baroness talked about academies briefly. I know that she has some concerns but one of the features has been partnerships that have been formed to support school improvement in the widest sense. Before entering into a funding agreement with an academy, we ask them to identify a school or group of schools that they will work with to improve their performance. That collaboration is a vital part of our overall strategy to tackle long-term problems and inequalities that sadly exist in parts of our education system. The practical benefits of this collaboration are obvious. Young people can enjoy a wider range of facilities and try out new subjects; underused resources will be employed better; teachers will have more opportunities themselves for learning and professional development.
These partnerships with academies are a natural progression from those informal, local partnerships between schools that have been developing for a number of years and which I know the previous Government were keen to encourage. The fact that these ideas are emerging from within the system rather than being imposed by central or local government to my mind makes the effect all the more significant and the benefits likely to be greater. I hope that the noble Baroness, Lady Hughes, will agree that these systems for peer-to-peer and school-to-school support will make a contribution to improving standards of attainment, behaviour and attendance. I recognise that the proof of the pudding will be in the eating but I believe that they build on the ideas behind some of the previous Government’s successful initiatives, and we think that that is a better way forward than issuing more guidance. We are committed to ensuring that all schools will have access to the expertise that they may need to address these issues. With that, I hope that the noble Baroness may feel able to withdraw her amendment.
Baroness Hughes of Stretford
My Lords, I thank the Minister for that response. I welcome the information he has given us about teaching schools. I support that initiative. In a sense, the whole idea of teaching schools substantiates the points I was making in support of guidance: those schools that are designated as teaching schools will be under no illusion that in order to be so designated they will have to accept the expectation that they will collaborate and disseminate good practice with other schools—it will part of the deal for being a teaching school.
I had hoped that the Minister would see the distinction in this amendment. It is not placing a duty on schools at all, but rather placing a duty on the Secretary of State to signal the clear expectation of the Government that schools, in taking public money and being responsible for the education of our children, will understand that there is an expectation that they work together and collaborate. I think most schools are willing to do that, but, as Sir Alan Steer said, not all schools are. That is why we thought that this would be an appropriate signal for the Government to send. I can see that the Minister is not minded to accept the amendment. While I am disappointed in that, I accept that that is the Government’s position, and I beg leave to withdraw the amendment.
Baroness Sharp of Guildford
My Lords, I agree with the noble Lord, Lord Puttnam. I find it very difficult to support this part of the Bill at all because for many years we have struggled to establish a proper professional organisation for teachers. I find it quite extraordinary that we are now destroying it. It gives teachers a sense of profession and of belonging to that profession. It is quite out of kilter with what is happening in the further education profession where those who get QTLS are being required to register with the IFL. I cannot support the Government on this issue.
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, as always, I listened to the arguments made by the noble Lord, Lord Puttnam, with a great deal of care. I thought that with his customary honesty he made the point clearly about some of the shortcomings of the GTC which are linked directly to the decision that the Government took to bring about its abolition. The point he raised powerfully about the disinclination of the profession to pay for its membership and the fact that it is largely taxpayer-funded is important and one on which we should all reflect. I would not disagree with a word that he or my noble friend Lady Sharp said about professionalism and the need to have a profession and raising the status, esteem and standing of teachers as professionals.
Earlier today, we spoke about the importance of trust. Before I talk about the specific amendments, where we disagree on the fundamental principle is on whether the GTC as constituted is an embodiment of professional status. We contend that it is not, although I agree with the noble Lord that it is perfectly possible, indeed likely, that in future years something will well up that captures and speaks for the professionalism that he advocates and that I know he feels strongly about, but it probably will not be the GTCE.
When we discussed this in Committee, I set out some of the things that the Government are trying to do to raise the status of the profession and the quality of entrants to it and to help existing teachers to develop and improve. As we discussed on the last group, one of the overall themes that we are trying to develop is to give teachers and head teachers greater responsibility for improving teacher quality. I think that is a very good symbol of greater professionalism. I am as keen as other noble Lords to support schools and head teachers to recruit high-quality teachers and to ensure that they are able to access the information that they need to do so. At present, the GTC has a register that contains detailed information from every teacher and employer in the country. This ranges from personal data and qualifications through to information on the types of posts held in previous employments. Schools and teachers are required to update this information at least three times a year. I am told that that costs around £500,000 a year, and that is before one counts the cost of the time spent on it in schools. I do not believe that maintaining that amount of information at a national level is desirable or necessary.
However, we have been persuaded by concerns raised in this House and elsewhere that there is a genuine need for the Government to help schools to know who has qualified teacher status and who has passed induction. The profession proposed an alternative to the GTCE register that I think achieves this objective, and the two leading head teacher unions wrote to the Secretary of State to express their strong belief in the need for an online database of all qualified teachers that is accessible by schools to replace the GTCE register.
We talked about this in Grand Committee but I can confirm that, having considered this, the Secretary of State has agreed that the teaching agency will establish and maintain a database that will record which teachers have attained qualified teacher status and which have passed their statutory induction period. That database will be available online to all employers from April 2012 and will be in addition to the prohibited list database, which will also be available to employers online. Together, the QTS database and the prohibited list will give employers an important resource in assessing qualifications as well as establishing who should not be employed as a teacher.
Baroness Walmsley
Perhaps I may ask my noble friend a question. Will these two databases be linked? I can imagine a head taking on a teacher might look at the original database to see if that person has been qualified and done the induction but they will not necessarily look at the other database to see if that person has been struck off since. Will there be a suggestion for somebody using the first database that they really ought to check the prohibited one as well?
Lord Hill of Oareford
That sounds a very sensible suggestion. I will need to check where we have got to on developing the two databases but that sounds eminently sensible because clearly one would want to make sure that there was read-across.
I hope in light of the reassurance about providing the information, which I accept there has been widespread agreement that we need, including from the party opposite, and about maintaining such a register, that the noble Baroness, Lady Jones of Whitchurch, may feel able to withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, I listened to my noble friend Lord Puttnam with a great deal of sadness as he described the demise of the GTC and what it had originally intended to represent, which was a strong professional standard for the teaching profession and something that they could all aspire to. It is a very sad day that we are here reflecting on its demise. The Minister said very warmly to my noble friend Lord Puttnam that he would not disagree with a word that he had said about teachers’ professionalism, and he went on to say that he hoped that something would “well up” to replace it. That is not much of a response to the profession. In the intervening period, while we are waiting for this welling up, the teaching profession will have been sent a signal that the Government really do not think that it is terribly important and it has got to bide its time before anything appears from the ether to be a standard for it again as a professional body. I echo the comments that have been made about the messages that this sends to the profession.
My noble friend Lord Puttnam went on to say that we would end up recreating the GTC and I think that is really where we are ending up. As we have heard, we have got one list, or maybe two. Somebody is going to have to administer those lists. At a very basic level, if they are not a register then they are moving towards becoming a register, and I acknowledge that the Minister has made some gestures towards what we were arguing. The question that has been raised about whether they will speak to each other is very valid.
I also think that there is a difference between a database of those who are qualified to teach and a register of those who are currently teaching. A register of those who are qualified to teach would very quickly get out of date. It would become a moribund list of people who have potentially not taught for 20 years or more, whereas the idea of a register is as a current, lively thing that enables access to people’s current status. It seems that we have got two poor substitutes for what was a perfectly reasonable arrangement in the first place. More work needs to be done on this.
As for this applying only to England and what happens to the other three nations. I am not sure that I heard the Minister address that issue. Three registers are going to exist in the other three UK nations, and England will be the only one which does not have one. We have made heavy weather of this. It would have been a lot easier if we had just kept the register as well, and be done with it.
I am absolutely sure that the thinking behind this is that the GTCE, for whatever reason, was not in favour with the current Government, and this is why we have ended up where we are. A lot more work needs to be done on this, but I take on board the Minister’s intention to come back and clarify some of these issues. On that basis, I beg leave to withdraw the amendment.
Lord Knight of Weymouth
My Lords, I support my noble friend Lady Jones on this issue. In respect of the non-safeguarding issues—the noble Lord, Lord Storey, has just talked about the safeguarding ones—my noble friend mentioned financial irregularity and misconduct. I know that the Minister is likely to repeat the defence that schools have to inform the Independent Safeguarding Authority, which to some extent deals with the issues raised by the noble Lord, Lord Storey. But it does not deal with the other issues.
I know that it is a great frustration to governors and head teachers when they find that they have employed someone who clearly is not up to the job and who had not been in their previous job, but the new school did not know about it. In terms of the professionalism of the workforce and teachers, it is very important that we respect that when things go wrong as well as when they go right and ensure that the facility is there to ensure that schools notify a central body. The Secretary of State would seem to be a sensible outcome, which is surprising given that much of my nervousness about this Bill is giving ever more powers to the Secretary of State, but on this occasion it is warranted. I would be interested in the Minister’s response if he happened to have in his back pocket any information around the numbers of teachers who are dismissed on grounds of gross misconduct that are not related to safeguarding. That would give us a better understanding of the exposure around this issue than if he relies just on the Independent Safeguarding Authority.
Lord Hill of Oareford
My Lords, I do not think I have that in my back pocket, but I will rootle in my clothing after this and see what information I can find. If there is relevant information which would shed some light on this I will, of course, send it to the noble Lord and circulate it more widely.
I will briefly set out the Government’s overall proposals on teacher regulation to try to put them in context. The GTCE currently deals with referrals for both incompetence and misconduct. I start with that because it touches in some way on the concerns raised by the noble Lord, Lord Knight. There is pretty clear evidence that the approach taken by the GTCE on incompetence has not been working and this is one of the things that drove us to try a new approach. In 10 years, the GTCE barred only 17 teachers for incompetence, and research has shown that employers are often reluctant to make referrals relating to competence to a national regulator. As we have discussed, they have previously only had a nuclear option and this has discouraged heads from making referrals, on the understandable basis that someone who might not be guilty of serious misconduct, but might need to move on and try teaching in a different school, finds himself grinding through the GTCE process. We are therefore seeking to separate issues of competence from issues of misconduct.
So far as dealing with incompetence is concerned, we want to put that into the hands of head teachers. To help them carry out this responsibility, we are also currently consulting on some streamlined arrangements for performance management and capability procedures. So far as misconduct is concerned, we certainly think there is a role for a national regulator, but we also want to try to give head teachers an appropriate level of responsibility, with only serious misconduct cases that may warrant the ultimate sanction—a bar from the teaching profession—being dealt with by the national regulator.
On the issue of safeguarding raised by my noble friend Lord Storey, the point made by the noble Lord, Lord Knight, is partly a response to that. Our proposals will not alter the current arrangements in relation to child protection. The legal duty on employers to refer any issues that relate to safeguarding to the Independent Safeguarding Authority will remain. The noble Baroness, Lady Jones of Whitchurch, asked what happens when the Independent Safeguarding Authority is informed. If a person is barred by the ISA, a flag would appear on their CRB check and a head teacher carrying out a check would then know.
The present regulatory regime requires head teachers to refer all teachers who are sacked as a result of misconduct to the national regulator. The regulator then investigates those cases and imposes one of a range of sanctions depending on the severity of the misconduct. Our basic position is that we do not think that a national regulator should need to administer intermediate sanctions such as restrictions on the use of the internet on school computers. The purpose of the national regulator should be to investigate the most serious cases in order to decide whether a teacher should ever be allowed to teach again. Under the current system, only 10 per cent of referrals have resulted in prohibition orders. In other words, a lot of the GTCE’s time—and a significant amount of money—has been spent investigating cases of a lower order of significance. Similarly, the current system requires head teachers to go through the process of referring a teacher, even if they believe that there are no grounds for barring them from the profession. This is inefficient and risks placing a perverse incentive on head teachers not to confront issues of conduct, because they think it is inappropriate and unnecessary to refer the case to the national regulator.
The amendments effectively seek to reverse the changes we are proposing to make to the role of the national regulator in relation to misconduct. The reason that I am resisting them is because experience of the current system has shown that requiring employers to refer all cases has had two undesirable consequences. First, as I have said, it means that the regulatory system has spent too much of its time focusing on cases that are not sufficiently serious to warrant the teacher being barred, and secondly, that heads have avoided sacking teachers for misconduct because they know it does not warrant an investigation by the regulator and they would not want them ending up on that path.
There is a point raised by the noble Baroness, Lady Jones of Whitchurch, about inconsistency, which I accept. I agree that arrangements for teacher regulation should seek to achieve consistency, but I do not believe that the current duty which she prefers is delivering that. Research published in 2008 found that between 2001 and 2008, nearly one-third of all local authorities had never made a referral for misconduct. Even when we take into account the different numbers of teachers employed in different local authority areas, the variation of referrals among local authorities indicates significant inconsistency in the current system. To reduce that, and to support head teachers in exercising their discretion, we are developing prohibition advice which sets out the kinds of misconduct that should lead to a teacher being barred from the profession. I circulated a draft on 12 October. We are currently carrying out a consultation on the guidance, which we intend to publish following Royal Assent. I would be happy to receive comments on that consultation from noble Lords to see whether they think it will help us to deliver greater consistency.
We are taking those steps and I hope, by explaining the rationale behind wanting to move to a more differentiated system, that even if the noble Baroness, Lady Jones of Whitchurch, does not accept my reasoning she will withdraw her amendment.
Baroness Jones of Whitchurch
My Lords, the noble Lord, Lord Storey, made a powerful case on the issue of consistency, and I think that it is the key word in this. We are grappling towards a system that is best going to deliver that consistency. The Minister said that it did not work in the past and that incomplete records were provided by different authorities. My answer to that is that what he is proposing now will make it even more inconsistent and patchy. The draft regulations he has recently sent out show that it will very much be discretionary rather than compulsory for employers as to whether they feed information into the centre. The onus of the wording is that employers “may” decide whether they wish to inform the Secretary of State, members of the public “may” be able to refer cases to the Secretary of State, and the police and the Independent Safeguarding Authority “may” also refer cases to the Secretary of State. The Secretary of State will have a very patchy and inconsistent picture, and I do not know that that helps anybody. What we really want is a resource that future employers can access and in which they will have some faith.
I understand the steps the Minister is taking, but we need to revisit the draft regulations. We need to make a much better attempt at trying to find a consistent and useful resource for future employers. I do not think that this is it, but there is room for further dialogue. On that basis, I beg leave to withdraw the amendment.
Lord Hill of Oareford
Lord Hill of Oareford
I should like to speak briefly to this and the other government amendments which make up the majority of this group. A number of these amendments were prompted by the debate about Clause 13 that we had in Grand Committee. My noble friend Lord Phillips and a number of other Peers were concerned that the way the clause was drafted might lead a judge to place undue weight on the welfare of the teacher involved when considering applications to lift reporting restrictions. It was not our intention to skew the judge’s consideration to the disadvantage of the pupil, or pupils, who had made the allegation.
Amendment 44 therefore makes it clear that courts must have regard both to the welfare of the teacher and to the alleged victim of the offence when deciding whether to lift reporting restrictions. My noble friend was also concerned that the clause could lead to one-sided reporting of an allegation. It provided that the written consent of the individual about whom allegations had been made should be a defence to a charge of breaching the restrictions. However, that could lead to a situation where a teacher defended himself publicly against an allegation while those making the allegation were unable to respond.
We thought that my noble friend Lord Phillips was right to say that when a teacher is responsible for a publication identifying him or her as the subject of an allegation, then restrictions should lift and other parties should then be able to publish their side of the story. Amendment 49 and the consequential Amendments 53 and 54 make this change. The remaining amendments are technical improvements to the drafting of parts of Clause 13 following discussions between officials at the Department for Education and officials at the Lord Chief Justice’s office. They do not represent a change to the policy intention behind the clause.
Amendment 42 clarifies that tentative allegations that a teacher may be guilty of an offence should be treated in the same way as firmer allegations that they are guilty. Amendment 43 and consequential Amendments 45, 46 and 50 clarify that applications for reporting restrictions to lift should be made to the magistrates’ court, with appeals going to the Crown Court. Amendment 50 and the paving Amendment 47 help the clause more accurately to reflect our original policy intention that reporting restrictions should lift automatically when a teacher is charged. I beg to move.
Baroness Hughes of Stretford
My Lords, I do not want to oppose any of the amendments that the Minister has tabled but I want to sound a cautionary note and put it on the record following our extensive discussion of the principles underlining the Government’s proposals in Clause 13. We had an extensive debate in Grand Committee and part of it was around the question that the noble Lord, Lord Phillips, put acutely: whether the Government had made the case that teachers are in a unique position in relation to allegations of abuse, such that the restriction on reporting was justified. He said that,
“if Clause 13 goes through unamended, it will repose in the teaching profession a privilege unique in English law”.—[Official Report, 6/7/11; col. GC 158.]
I want to preface my remarks with great concern for any person in any profession against whom allegations of child abuse are made and are not true. I completely understand the concerns about blighting a career and suspending a person in an anxious time while investigations take place. I have a son who is a teacher at a primary school and many sisters and some brothers-in-law who are teachers, so I am appraised of and concerned about that side of the argument. I also understand why the teaching unions make it. However, I am also concerned about safeguarding children and that is the difficult territory that we are in here.
The Government offered, in response to our debate in Grand Committee, to do some research to see what the figures were. That research has now been published and was referred to in the press at the weekend. When noble Lords look at the figures, they will see that of the cases examined—more than 12,000 where allegations were referred to local authority designated officers—under a quarter were in relation to teachers. If you add in the smaller, but none the less substantial, numbers of non-teaching school support staff, it is still well under a half of all the allegations. It is more telling that for teachers—this was the headline in the press—nearly half of the allegations, which came to 2,800 cases, were classified as unsubstantiated.
This does not mean that there was no truth in the allegation but that the threshold of evidence for prosecution could not be reached. This is difficult territory because most of those allegations will depend only on the word of the pupil against that of the teacher. There will not be witnesses present in most of those allegations. “Unsubstantiated” means that there was insufficient evidence to proceed; it is not a judgment about whether the allegations were true. Even more telling than that is that only 2 per cent of the allegations against teachers and FE lecturers were classified as malicious. The guidance issued by the Government in August makes great play of, and refers extensively to, malicious allegations, and yet we now have from the research a finding that only 2 per cent of allegations were malicious.
I am not going to oppose the amendments. I understand why the Government have acceded to the pressure from the unions, although we decided at the time, because of the problems that arise and the concerns about safeguarding, not to accede to that pressure because it opens up the other argument about where to draw the line. As I say, there were smaller but substantial numbers of non-teaching staff—some 1,700—against whom allegations were also made. I simply sound a cautionary note to the Minister. I hope that we do not find further down the line that a serial abuser—there have been serial abusers in schools—gets away with abuse over a long period because none of his—they are generally men—crimes could be reported because the evidence in relation to each one never reached the threshold for prosecution. I hope that in passing this legislation we are not responsible for the preventable abuse of any child. I say this without wanting to castigate the Government, but it is very difficult territory and I am not sure we are in the right place. I understand why the Government have done this but we will have to watch the situation very carefully.
Lord Black of Brentwood
My Lords, I do not wish to detain the House for terribly long but I would be grateful if I can say a few words as I raised this issue for the first time at Second Reading and then talked with the noble Lord, Lord Phillips, about it in Committee. As this is an issue that affects the media, I declare an interest as executive director of the Telegraph Media Group. On Second Reading, I originally raised three concerns. The first was about the workability of these proposals and whether it was possible to muzzle the printed press and broadcast media in a digital age when gossip at the school gate would simply be transformed into dialogue on social media. The second was about the impact on press freedom and open justice, particularly because of the lack in this legislation of a public interest defence. The third, about which we have heard eloquent testimony this evening, was about the welfare of vulnerable children. Underlying all that was a belief that the case had not been made out for a substantial incursion into freedom of expression. The noble Baroness, Lady Hughes, spoke earlier of the latest statistics showing that only 2 per cent of cases related to malicious allegations. That is a very small number and in none of those has it been proved that publicity was responsible for that.
Those were my concerns. All that said, I am very grateful to the Government for having taken a number of those issues on board. Amendment 44 goes a considerable way to protecting the rights of children. It gives the courts the opportunity to balance the victim with the perpetrator of the crime. Amendment 49, which relates to individual teachers putting material into the public domain, again goes some way to dealing with the impact on the media and open justice, and I think helps to bring this legislation much more into line with the Human Rights Act 1998, which protects material which is in the public domain. That seems to me to be of especial importance in view of the concern I expressed about the impact of social media on this legislation.
I wish that the Government had been able to go further. Indeed, I wish that this clause had not been in the Bill in the first place. However, these changes seem practical and welcome, and may go some way to ensuring that these provisions will have a much less significant impact on the rights of children and on the free media than when the Bill was originally drafted.
I should add that, as a result of these amendments, and the explanations that the Minister has given today, I see no need for my own part—although it is still a matter for the noble Lord, Lord Phillips—to press Amendment 48 or Amendment 51, and withdraw my name and support from those.
Lord Hill of Oareford
My Lords, we had a very good debate about this issue in Committee, and, although the hour is late, we have just had another such debate this evening. I recognise the point that the noble Baroness, Lady Hughes of Stretford, made at the beginning: this is not a completely straightforward issue. There are difficult interests to balance. I understand the force of the arguments that have been made about the importance of safeguarding children. I am extremely clear that a huge amount of progress has been made over the years in making children safer in school, thanks to steps taken by the last Government, and no doubt Governments before that. To respond to the point raised by the noble Baroness, Lady Howarth, we have no desire to do anything to unwind or undermine any of that. I listened with care to the point she made about Childline. My understanding is that the Bill would not prevent children talking to Childline, and Childline talking to parents. However, I understand the force of what she was saying, and I will check that that is the case. Clearly one would not want a measure inadvertently to have the effect which she raised.
At the heart of this, and the reason why the Government are doing this, is the evidence that has been provided to us on this issue. I think that that evidence is not contested: I know that there is a difference of opinion about the strength of the evidence of the number of cases of pre-charge publicity in the press, but there is an acceptance that we have a problem, that there is a growing number of allegations made against teachers, that teachers are fearful of this trend, and that they are fearful of the effect that it has on their ability to exercise their position of authority in the classroom. We think that they have a particular position—
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend the Minister, but he is wrong about these statistics. The JCHR misread the NASUWT statistics. I said in Grand Committee that,
“for the past three years there has been a decline”,
in the number of allegations—and this is on the statistics in the JCHR report. In 2008, there were not 181, as there had been the previous year,
“but 148; in 2009, 115; and, last year, 107. Yet the Minister in the other place said that the number of allegations had increased, which is simply wrong”.—[Official Report, 6/7/11; col. GC 172.]
With great respect, I suggest to the Minister that he does not follow down that fallacious track.
Lord Hill of Oareford
My Lords, I will look at the figures again in the light of what my noble friend said. I would not want to go down a fallacious track. I recognise the difficulties that the issue poses. I know how strongly my noble friend feels about it. I have been able to discuss it with him on a number of occasions in recent months. He made a very powerful speech tonight and I know that underlying all of this is his passionate commitment to the principle of freedom of expression. I know that that drives him and that it is an important principle.
I know as well that his amendments are designed to improve a clause that he and my noble friend Lord Black of Brentwood would rather see removed altogether from the Bill. I thank him for his approach in trying to come up with ways of improving what clearly he thinks is a deficient measure. Two government amendments in this group are improvements that he has prompted to the clause. I am grateful to him for that and for the remarks that my noble friend Lord Black made about those improvements and the reassurance that they provided for him.
The fundamental concern of my noble friend Lord Phillips is that the clause interferes with the principle of freedom of expression. I understand that. That is part of the reason that the Government have sought to draw the clause in a narrow way, limiting it to pre-charge reporting of allegations against teachers by current pupils, despite calls that we faced at the beginning of proceedings on the Bill from various quarters—including a number from this House—for us to go much further in extending these measures. We resisted that pressure and I think that the feeling of the House at this point is that it was right to do that. I understand the principle of which my noble friend is a passionate champion, but I contend that it needs to be balanced with the need to protect teachers against the damage that can be done by false allegations and by press reporting of them. We seek to strike a balance and this debate is about whether we have got it right.
Baroness Walmsley
Perhaps I may ask my noble friend a question. I apologise and will make it very quick. Can he tell us how many allegations where the teacher has been identified have been reported prior to charge in the past two or three years? My noble friend suggests that there have been six. Another noble Lord said five. Do the Government think that the correct number is a multiple of that? We simply have not been told.
Lord Hill of Oareford
My Lords, getting an accurate picture of the extent of the problem is difficult. I accept the point made by my noble friend Lord Phillips that, through the research that the department has carried out by going online and looking at local press reporting as best it can, so far the number of cases that it has come up with is a multiple of five, but not many multiples of five. I think that the number circulated after the recent survey carried out for the department was 15. I accept that that is not a large number. However, the principle and the concern that underlie it are what we seek to address.
I will now address the amendments that my noble friend tabled rather than the general principle. The first area where he thinks that the clause gets the balance wrong is in relation to communication within the school community. His Amendment 51 seeks to ensure that pupils or parents will not breach reporting restrictions by communicating with other parents and other members of school staff. An example of where this might happen is if the parent wishes to communicate with other parents about an allegation that their child has made against a teacher. I should clarify that parents would not breach reporting restrictions by holding private conversations whether in person or online. The reporting restrictions would apply only to communication to the public at large or any section of the public.
My noble friend argued that a parent might wish to communicate with a section of the public in this way in order to seek corroboration of an allegation against a teacher before raising it with the school. We think that the effect of his amendment would be wider than that and would exempt from reporting restrictions communications by any pupil or any person acting on behalf of the pupil to any section of the school community and so reduce the protection the clause gives teachers against malicious or unfounded gossip. For example, it would allow pupils or parents to use a forum on the school network to publish an allegation against a teacher widely within the school community. I agree with my noble friend that parents should be free to follow up allegations made by their children, but I do think—I know he was dismissive of this point—that they should do that through appropriate channels by raising the issue with the school or the relevant authorities rather than by launching their own inquiries or campaigns. He knows, because I have discussed it with him before, that I am aware of a number of cases where e-mail campaigns against teachers are led by parents to whip up a campaign against them. We would not want that to be allowed to happen.
Lord Phillips of Sudbury
The Minister is surely aware that if anybody whipped up, as he put it, a campaign that was untrue, they would be subject to very heavy libel or slander damages.
Lord Hill of Oareford
I am aware of that, and we have discussed that point before. I know that is the case, and I defer to my noble friend who is a very distinguished lawyer, who I think used to do libel. To expect a teacher who finds himself the subject of a malicious campaign to take a libel case on his own account, financially, emotionally or in any other way, is not a practical course of action.
Baroness Howarth of Breckland
In making that comment, does the Minister feel that a teacher cannot take that action but that a parent, with all the distress that they are feeling about their child having accused a teacher of abuse, can go to a judicial review with all that means without the support of other parents? That is simply not the real world. Does the Minister not agree that there is some imbalance in the two things that he has just described?
Lord Hill of Oareford
I did not say that a parent who has concerns would have to go to judicial review. I am arguing that for a parent who has those concerns— I agree 100 per cent with the noble Baroness that a parent would want to have them investigated and taken forward—there are a number of ways, whether through the police, the local authority, the LADO, and so on, to make sure that those concerns are investigated. I am not at all saying that if they have concerns I would expect them to have to go to judicial review.
We are absolutely clear that genuine victims of abuse must be able to disclose the abuse and that such reports must be investigated properly. These provisions do not interfere with that. They do not prevent the police interviewing witnesses. We think that effective investigations are possible without press reporting. The police can seek to lift the reporting restrictions if necessary to draw attention to an issue if they are seeking more information about a particular person.
The other amendment proposed by my noble friend would mean that reporting restrictions would lift when a person who is the subject of an allegation resigned or was dismissed from the relevant employment. He is concerned that without this amendment, Clause 13 may help schools cover up misconduct and argues that press reporting is an important check on such behaviour.
One difficulty with the amendment is that its implications would go well beyond this issue; for example, it would mean that any teacher who resigned to take up a post at another school would lose their protection against the reporting of allegations, even if the allegation was unfounded and had no influence on the teacher’s decision to resign. We are committed to ensuring that genuine allegations of abuse are investigated properly by the appropriate authorities. Schools have a statutory duty to investigate allegations and, where appropriate, to refer them to the relevant authority. Our new statutory guidance on this subject makes absolutely clear that if a person tenders his or her resignation or ceases to provide their services, that must not prevent an allegation being investigated. If it is well founded, the investigation will lead to the police bringing a charge or to the regulator holding a hearing. At that point, the reporting restrictions will lift. If there is insufficient evidence to reach this point, we think it is right that the teacher’s anonymity is protected and their reputation and career safeguarded.
I accept that a small minority of heads may in theory seek to cover up allegations or may not be as swift in acting on them as we would wish. However, I do not think that press reporting is the best or the only way to counter this possibility. If parents or others are not satisfied that schools are dealing with an allegation, they have recourse other than through the press: they can refer the case to the national regulator; they can ask the Secretary of State to investigate and exercise his powers of direction; they can go directly to the police if they consider a criminal offence may have been committed. In addition, if any person feels that there is a strong public interest in publishing details of identifying information about a teacher against whom allegations of criminal behaviour have been made, they can apply to the local magistrates for reporting restrictions to be lifted.
I will quickly reply to a couple of less contentious points. My noble friend Lord Phillips asked about government Amendment 42. In order to cover ambiguous allegations that someone might be guilty of an offence where, for example, a pupil claims, “I think it was teacher X who did it”, we have changed the definition from,
“an allegation that the person is guilty of a relevant criminal offence”,
to “may be” guilty of an offence.
My noble friend Lady Walmsley was worried that Clause 13 might unintentionally hinder Ofsted from including information in its reports that it would otherwise want to include. I recognise her concerns about that. In cases where a school is found to be failing to implement arrangements for safeguarding and promoting the welfare of children appropriately, we expect inspectors to include judgments or commentary about such failings in published reports. In light of her concerns, my officials contacted Ofsted today to ask whether it thinks there is a risk that Clause 13 might constrain inspectors in making their reports. Ofsted said that inspectors would not feel constrained in reporting on a safeguarding issue. As a matter of general policy, they always take care in writing reports to ensure that no individuals can be identified. Of course, if the inspectors uncover safeguarding concerns during an inspection they can and should provide full detail, including the identities of those concerned to the appropriate authorities and the reporting restrictions would not interfere with that in any way.
Those were the less contentious ones. I understand the strength of the feeling of my noble friend Lord Phillips, and the passion with which he has argued this evening. I have been able to agree with him on two of the improvements to the clause that he has proposed. I know he will not agree with me but I think there are difficulties with the two further ones he has put forward—that they would weaken the protection that we are seeking to give to teachers—and I ask him to withdraw his amendments.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
My Lords, I should point out to the House, if I may, that the noble Lord, Lord Phillips of Sudbury, has not actually moved his amendment. It has not yet come up. My duty at this moment is to ask the House whether it wishes to agree to the amendment tabled by the noble Lord, Lord Hill, which, if I may, I will now do.
Lord Hill of Oareford
Lord Hill of Oareford
“(11A) The restrictions in subsection (3) also cease to apply if—
(a) the person who is the subject of the allegation includes a matter in a publication, or(b) another person includes a matter in a publication with the written consent of the person who is the subject of the allegation;and, in either case, the inclusion of the matter in the publication would otherwise be in breach of subsection (3).(11B) Written consent is to be ignored for the purposes of subsection (11A)(b) if it is proved that any person interfered unreasonably with the peace or comfort of the person giving the consent, with intent to obtain it.”
Lord Hill of Oareford
“( ) For the purposes of this section, proceedings for an offence are instituted at the earliest of the following times—
(a) when a justice of the peace issues a summons or warrant under section 1 of the Magistrates’ Courts Act 1980 in respect of the offence; (b) when a public prosecutor issues a written charge and requisition in respect of the offence;(c) when a person is charged with the offence after being taken into custody without a warrant;(d) when a bill of indictment is preferred by virtue of section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933.”