Education Bill

Lord Peston Excerpts

Monday 4th July 2011 Grand Committee

[Baroness Hughes of Stretford]

My noble friend makes an extremely important point, which I was also going to try to make but he has made it very well. This is one of the problems with the way that the Bill has been constructed, tearing down, as it does—in my view, somewhat recklessly—a whole range of requirements and apparatus. When you look, as we will shortly, at the proposal to repeal the responsibility of schools to be in a behaviour and attendance partnership, and set that alongside the measures before us, you see that the situation is compounded. At least if schools were in such a partnership, they would have a responsibility to work with schools in their federation or partnership to find solutions for those difficult children whom some schools propose to exclude. Taking both away makes things very difficult. One cannot see what will happen to children when they are excluded through this process.

If the Minister is not minded to reconsider, will he explain to the Committee what safeguards the Government would put in place to assure the groups whom we have been discussing who are already adversely affected by permanent exclusion and would be more so through these measures? What safeguards do they propose to put in place, not just to contain but to reverse that trend?

Many organisations in addition to those mentioned by the noble Baroness, Lady Walmsley, have expressed their concern about these proposals. The Children’s Society, the National Children’s Bureau and the Children’s Commissioner have asked the Government to think again. Some trade unions have raised a slightly different but equally important point, arguing that rather than reducing bureaucracy there is a danger that, unless either the amendment that I am speaking to or that proposed by the noble Baroness, Lady Walmsley, is enacted, removing the panels and taking away the power to reinstate may lead parents to think about taking legal action against schools. That would involve a great deal more work and unnecessary bureaucracy for schools.

The amendments proposed by the noble Baroness, Lady Walmsley, would mean that all parents of permanently excluded children would be able instead to appeal to the first-level tribunal. That has much to commend it. Those tribunals, unlike the review panels, would be led by somebody who was legally trained, which is a big advantage. One could ask, as did the noble Baroness, what the consequences would be in terms of time, delay and expense of all the cases going to such a tribunal. Might there not be an argument for a remedy at a more local level for at least some of those cases? I am open to debate on that point; the main thing, as we have both said, is that there should be somewhere in the system a right of appeal to a body that has the power to reinstate.

Sir Alan Steer recommended in his independent review, Learning Behaviour:

“Independent exclusion appeals panels should be retained, both in the interests of natural justice and to prevent schools becoming embroiled in time-consuming or costly alternative legal processes”.

I have mentioned the Runnymede Trust, which has provided a number of case studies, one of which is particularly salutary. It is the case of the Formula 1 champion, Lewis Hamilton, who when he was 16 was excluded from school in a case of mistaken identity after he witnessed an attack. In his autobiography, he writes:

“I knew I was innocent but”,

the head teacher,

“did not appear to be interested. Subsequent letters to the local education authority, our local MP, the education secretary and even the prime minister, were of no help. No one appeared to listen—no one either wanted to or had the time. We were on our own, and I was out of school”.

However, Hamilton’s school career was saved due a successful case made by his father to an independent appeal panel, which reinstated him at the school.

While there is a chance of even a small number of cases such as that occurring, and given the arguments that we have all made about natural justice and fair process, it would be wrong to remove the power to reinstate. The noble Baroness, Lady Warnock, asked at our previous sitting what would then happen if that decision was taken. Yes, we can have a conversation about where that child goes. However, to have won your appeal puts you in a very different position from being excluded and there being no power to reinstate.

[Lord Peston]

I express my sympathy with the noble Baroness, Lady Walmsley, and her amendments. I do not have her expertise on this matter, but there are some general principles which, it seems to me, we cannot avoid looking at. First and foremost of those principles is the fact that the young people whom we are talking about come overwhelmingly from the lowest socio-economic group in our society. This is not a random group of misbehaving young people; it is a highly limited group. Indeed, the latest research, which I have looked at, says that what the experts call young people with socio-emotional problems occurs to an enormous degree among the poorest in our society and to virtually no degree at all among the richest. We cannot avoid that fact, if we take deprivation as one of the main criteria in judging how we run our education system.

The thing that horrified me was the discovery that we can see these socio-emotional problems arising at a very young age. The evidence overwhelmingly is that it can be seen at the age of three, or even less. I do not remotely believe that this Government would go down this path, but my immediate thought was that it could end up like George Orwell’s Nineteen Eighty-Four. I can easily imagine someone or other coming up and saying that what we ought to do is to filter these people before they go to school and not let them go there. That is the kind of background that we have to bear in mind as we look at this.

The second point that I make, which the noble Baroness herself made, as did my noble friend, is that the fact that these people are young children does not mean that they have no human rights. None of us would tolerate being treated in this way on anything else that we encountered as adults. Whatever was going on, and if we were doing something wrong, we would certainly expect to be dealt with with due process and the right of appeal against anything that was relevant.

I as a teacher have never had to deal with disruptive pupils. I dealt for years and years with students who had not the slightest interest in what I had to say, but my experience was that they just shut off. They did not bother me, and I was perfectly happy for them to shut off, because I could then talk to the people who I really felt wanted to learn my subject. But my heart goes out to teachers who have to deal with disruption in their classrooms. None of us doubts that, or I hope they do not. But that is quite different from saying that these people who disrupt are in full control, when very frequently they are not. Overwhelmingly, it does not mean that they have no rights.

My view therefore, as is typical when we meet as a Committee in your Lordships' House, and particularly in a Grand Committee, is that we should have our say and hope that the Minister listens sympathetically and sees whether anything can be done to meet our worries. The noble Baroness, Lady Walmsley, has put her finger on something that is not minor at all. It is a major question that confronts how we run our education system, and I should like her to know that I, along I am sure with many of my colleagues, am very much in sympathy with what she has to say.

[Lord Morris of Handsworth]

My Lords, I support the amendment moved by the noble Baroness, Lady Walmsley, dealing with the issue of exclusions. As we have heard, the issue is not exclusions per se but one of process and, of course, procedure. More importantly, it is one of basic natural justice.

All of us in this Room and in this debate start from the position that good discipline is important to good learning. We start from the position that everyone associated with the education system needs to be and should be supported. Teachers should be supported, heads and governing bodies should be supported and parents need support. In the overall context of those stakeholders, however, the children themselves need proper support.

So these amendments, which I support, are necessary to prevent what I call the end game—exclusion without proper review, given the possible consequences of exclusion on the future of those pupils affected. The decision to exclude, without the process for the facts, the information and all the consequences that led to the decision, means that it is neither properly heard nor properly examined.

Fairness and justice lie at the heart but it seems that the Secretary of State has taken the position that the heads and governing bodies are always right and that the pupil is always wrong. That cannot be sustained because here we have a situation where those associated with a decision, whether it is the heads or governing body, are the accusers in the first instance. They are the investigators, assembling the facts and putting together the arguments. They prosecute in the case and, in the end, they are the judge and jury, all without any recourse to justification. The review panel, as we have heard, has no powers for reinstatement, however unjust the decision might have been.

In her introduction to the amendment, the noble Baroness set out the position of the Joint Committee on Human Rights, and here I declare an interest as a member of that committee. Moving beyond its view, however, the fact of the matter is that legally decided opinions on the issue of expulsion without review are not on the side of the Government. The decided cases that the Government have used in their defence claim that expulsion from education is not a human right. But that is not the issue. There are equally strong legally decided cases which indicate very strongly that the real issue is not a question of whether education is a human right. What is a human right is the right of the excluded individual to return to the school from which they have been excluded. That is fundamentally different from the Government’s legal position that they cite in support. With that conclusion, I support the amendment.

--- Later in debate ---

[Lord Peston]

My reading of the Bill is somewhat different from that of the noble Baroness, Lady Perry: it is that it gives the head enormously more power than he or she had before. Is she saying that that is not true?

[Baroness Perry of Southwark]

I am not saying that it is true or untrue. The difference—it is very small—is that in the past the appeals panel could insist that the child went back to the school, while the review panel can now simply say, “You got the decision wrong. We ask you to consider again”. The only difference between what a review panel can do and what the previous appeals panel could do is the power to reinstate. In any case, to allow a child to go back into a school when all this process has taken place is a terrible thing for the teacher who asked for the exclusion in the first case, for the governing body which made the decision and supported the head, and for the authority of the head themselves.

--- Later in debate ---

[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.