Education Bill

Lord Phillips of Sudbury Excerpts

Wednesday 6th July 2011 Grand Committee

[Lord Black of Brentwood]

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

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

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

[Lord Phillips of Sudbury]

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

[Baroness Walmsley]

I would be only too happy if the Minister were to say exactly that.

[Lord Phillips of Sudbury]

Thank you.

[Lord Hill of Oareford]

My Lords, I shall try to pull together some of the strands from this extremely good and thought-provoking debate. I fully accept that these are not simple issues. I recognise that the noble Baroness, Lady Howarth, approaches this matter from a slightly different point of view from the generality of the Committee, with her concern for the children involved, whereas generally there was acceptance of the principle that one needs to protect teachers in schools. However, the debate concerns whether one should extend that further. I recognise noble Lords’ concerns, some of which were raised by my noble friend Lord Black, which we shall discuss in more detail when we consider amendments in the next group in the name of my noble friend Lord Phillips.

I accept that the reporting restrictions introduced by the clause interfere with rights to freedom of expression. I think that the noble Baroness, Lady Hughes, made this point. I think all noble Lords agree that any such interference would need to be carefully targeted, proportionate and justified. Teachers already have legal remedies if they are the victims of libel and defamation, as we all do, but those remedies are available only once the damage is done. My noble friend Lord Black raised that point.

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Moved by

[Lord Phillips of Sudbury]

73HA: Clause 13, page 20, line 14, at end insert “unless that person has put the allegation directly or indirectly into the public domain”

[Lord Phillips of Sudbury]

My Lords, I asked for the degrouping because this is already a long group of amendments, which is the nitty-gritty and I hope to cover them. That the clause should stand part is a separate debate, which touches on many of the things that noble Lords have said with regard to previous groups and I shall make no further reference to that now.

I put forward this group of amendments very much in a probing spirit. They are not perfect. This is a highly complex clause and I shall seek to explain the point of the amendments in turn. But I am mindful of the fact that, if Clause 13 goes through unamended, it will repose in the teaching profession a privilege unique in English law. As others have said, if this should apply to teachers, why not to many other groups? It is an argument which seems to me to be quite unanswerable. With great respect, I do not think that my noble friend Lord Hill answered it.

We have this debate on a very pregnant day. The other place has debated the latest extraordinary events in relation to phone tapping. Partly because of that, and because the public are so agitated about the conduct of certain sections of the press, it becomes doubly incumbent on us to keep a cool head. I suspect that we, more than any other group in the land, understand the absolute indispensability of a free and fearless press to the preservation of democracy, the rule of law and open justice. Furthermore, if we are frank, we will acknowledge that it was just such reporting, particularly, I have to say, on the part of the Telegraph, which exposed the expenses scandal in both Houses of Parliament. For that, we need to be a little humble.

I should declare my interests. For a decade, I was a proprietor of a newspaper and a trustee of the Scott Trust, which owns the Guardian, the Observer and a fleet of local papers. For 20 years, I was a governor of state comprehensive schools, one of them as a parent governor. My wife is a former teacher and is presently a governor of a state comprehensive school. I come to this subject with huge respect and sympathy for the teaching profession. I understand exactly what it is on about. I also understand a little about the difficulties of dealing with situations where juveniles are witnesses and complainants. Especially in the early part of my long legal career, I dealt with some of those cases and I understand the quite peculiar difficulties of them.

Diving straight into my amendments, many noble Lords will not understand that truth will be no defence against the criminal charge of identifying a teacher, even if he had in fact committed serious criminal offences against one or many pupils. The clause is clear that until and unless a teacher has been charged, which will often follow a long time after an arrest, no individual and no media outlet can say or do anything which would identify that teacher unless the parent, pupil or media have been to court and obtained consent to lift the restrictions. I am bound to say that in my experience the hurdles of going to court and making an application to lift restrictions are simply beyond the scope of a normal pupil or parent, quite apart from the expense of employing a lawyer to undertake that task.

The first amendment in this group to which I shall draw attention relates to new Section 141F(12). It defines what a publication is in respect of which a criminal charge can be brought against anyone identifying a teacher. It gives exceptions to publication, saying that an indictment shall not be a publication so as to bring on the prosecution for identification and so on. I have added, in Amendment 73HJ,

“a publication by or on behalf of a registered pupil at a relevant school made to a person or persons affected by the allegation or who otherwise has or have a bona fide interest in receiving the same”.

If I am the parent of little Johnny who comes back and says that Mr Smith has been doing this or that and I go to the headmaster and say that this is what little Johnny said, and then nothing happens—let us not kid ourselves, often nothing will happen—surely I must be free to go to other parents in little Johnny’s class and possibly to a wider group than that. If I were to do so, I would then be liable to criminal prosecution under the provisions of this section and that must be utterly daft because it would then be a publication to a section of the public. That phrase “a section of the public” has a rather legal meaning and I think I am right in saying that my writing round to, say, 50 other parents in the school would fall foul of that. So that is the first amendment I draw attention to.

What needs to be understood is that in some cases no charge will ever be brought, even though there has been a blatant case of assault or sexual interference. The most common reason for that is likely to be lack of sufficient evidence to satisfy the criminal test of beyond reasonable doubt. The younger the pupil, the more vulnerable they are, and the less confident, composed and convincing witnesses they tend to make. The CPS, in deciding whether or not to bring a prosecution, with all the substantial distress that that can bring to the child or young person, or to the witness and their family, will consider that a major factor and, as it thinks that the witness will not stand up, it may simply not prosecute. No charge may ever be brought. There can also be the problem that the evidence is not corroborated.

There is also a complication, which I need to spell out. If a charge is never laid, no publicity can ever be made, even if the case is a bad one, unless someone goes to court and gets the restrictions lifted. Another complication is that although allegations are supposed to be recorded, then reported and acted upon—your Lordships have heard about that several times—the temptation on the part of a head to deal with matters informally and quietly can be very strong, especially where the school is going through a rough patch and where further publicity could be devastating for it. In any event, teachers are human and, knowing the consequences to a valued colleague when certain, perhaps lower level, allegations are proceeded with, and if there is a bond between the teacher and the head, the rules are not always strictly followed. Does anyone think that they were in the Catholic schools, where, a few years ago, revelations came far too late to help the many boys who had been abused? The prep school that I had the misfortune to attend was presided over by a predatory, aggressive homosexual who abused boys on a daily and nightly basis for 12 years. Nothing ever came to light, nothing was published and no charge was brought.

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[Lord Hill of Oareford]

I am not answering. I cannot respond to the speaker. We want to hear from the noble Lord, Lord Phillips.

[Lord Phillips of Sudbury]

My Lords, I am grateful to the Minister for his, as usual, careful and considerate reply. There are a lot of very difficult technical issues involved in that group of amendments. I welcome his invitation to talk about them outside this Committee Room, and I will certainly do that.

I want to refer to only one of his answers particularly, because I am wholly, as opposed to partly, unsatisfied by what he said as regards Amendment 73HJ. The Minister’s claim was that one could get a parent who wanted to start a vindictive campaign against a teacher. I think that is at the far end of speculative possibility, not least because a parent who did that would be in direct danger of libel proceedings by the teacher concerned. One might argue that teachers do not do that, but I have acted for a few people who have done that and have prospered from doing something to recover their reputations. Anyway, we shall talk about that when the time comes.

The only other thing I would say is that I am most grateful to the other Members of the Committee for their extremely wise and informative contributions to this mini debate and I note that not a single person opposed the amendments. No doubt the noble Lord, Lord Hill of Oareford, will sleep on that. I beg leave to withdraw the amendment.

Amendment 73HA withdrawn.

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[Lord Phillips of Sudbury]

My Lords, when I tabled the amendments to Clause 13, I thought that I would leave it at that. However, as I delved more deeply into the background to the clause, had conversations particularly with the National Association of Schoolmasters and Union of Women Teachers, and read carefully the 13th report of the Joint Committee on Human Rights, which was published on the 13 June, I became more and more concerned about the blatant lack of any satisfactory evidential base to support what is, on any reckoning, a very major change in the law of this land. It is the first time in our history that such privilege has been given to a protected group. I want, therefore, to test with the House a little further the whole notion of Clause 13 being removed from the Bill.

Many noble Lords have already said that it poses all sorts of technical and other problems. I noted that, in her opening on the previous group of amendments, the noble Baroness, Lady Hughes, expressed some concern about the whole position and about the whole of Clause 13. The noble Lord, Lord Knight of Weymouth, was clearly concerned. My noble friend Lord Black and the noble Baroness, Lady Howarth, were among a number of noble Lords who directly challenged the need for Clause 13 and several others who have hinted at it. So I hope that noble Lords will bear with me if I plod, as I have to, through the specifics of the factual base which the Government say justifies this novel provision, which, let us not forget, strikes at the heart of freedom of the press, law and order, and open justice.

My first point is that the JCHR report to which I have just referred put questions to the Secretary of State for Education. The 13th question was:

“In each of the last three years, how many examples is the Government aware of in which allegations against teachers have been made public before charge?”.

The Committee will appreciate that that is the very heart of Clause 13. Publicity after charge is unaffected by the Bill. It is still a highly complex subject, even after charge, but unless there is clear and voluminous evidence that criminal allegations against teachers have been made public before charge, I submit that there is no ground for Clause 13. What was the reply of the Secretary of State to this pregnant question? It was:

“The Department does not routinely collect this data”.

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[Baroness Perry of Southwark]

At Second Reading, I quoted figures for the past 10 years from the department which showed that more than 1,700 allegations against teachers were made. If 85 per cent of them were not upheld, the figures do not support the argument that the noble Lord is making.

[Lord Phillips of Sudbury]

With great respect to the noble Baroness, I cannot agree. Perhaps that is because I am a hoary old lawyer and she, happily, is not. A 15 per cent conviction rate in respect of all the allegations made is a very high outcome. I will happily discuss this with the noble Baroness outside the Room. The ATL figures seem to me to be hopeless as a basis for bringing in this important reform.

The JCHR seems to be lacking in awareness of the balance of injustice and harm between pupils, particularly young ones, and their teachers when it comes to criminal allegations. We are in danger—and in the other place they are even more in danger—of expecting too much of the law. It is not the finely tuned truth machine that ideally we would like it to be. It never can be, given the machinations of mankind, despite the best efforts of our excellent judiciary. We do not talk about rough justice for nothing. That is why in criminal law we have a test of proof beyond reasonable doubt, rather than the lesser, civil test which is based on a balance of probabilities. The bias towards the accused is necessary to protect the innocent from conviction, which we as a society believe is much more important than convicting every guilty person.

We are not talking here about conviction or acquittal but about the freedom of the press to report, within the bounds of defamation, where criminal allegations are made, pre-charge, against teachers. We have to balance their vulnerability to unfair reporting against the undue sheltering of teachers, the interests of actual and potential victims and the interests of the public.

I turn finally and briefly to paragraph 112 of the June report of the JCHR, which states that,

“defamation proceedings offer no protection”,

to a teacher,

“where a report states that an allegation has been made”,

provided that it,

“does not assert that the allegation is true”.

The noble Lord, Lord Hill, referred to this in his earlier reply.

As one who has done a considerable amount of defamation work and overcome that defence put up by newspapers, I can only think that the committee is wrong when it says that libel proceedings offer no protection. The Reynolds case in 2001 and the Jameel case six years later prevent newspapers sheltering behind the defence of qualified privilege—or reportage, as it is called, in relation to a matter of public interest unless they comply with sensible tests. In the Jameel case, the noble and learned Lord, Lord Nicholls of Birkenhead, said that newspapers would not have a defence unless the report was responsible, fair, on a matter of public interest and in compliance with certain other tests, which would include the obligation to evaluate fairly and sensibly the basis of an allegation. They cannot simply recycle a verbal report of an allegation or something given to them by letter without checking. They have also to check with the person aggrieved, the teacher. They have to give the gist of both sides of the story and, importantly, they have to look at the whole tenor and pitch of the article. I hope that that is enough to show that teachers who are the subject of sensational, biased, unfair reports pre-charge have protection. One or more of the unions might make it their business to pick up a couple of test cases, which they could take and use to make their point. Believe me, that would reverberate around Fleet Street very quickly, as my noble friend Lord Black will confirm.

Teachers might also take up the invitation of the Press Complaints Commission—again the noble Lord, Lord Hill, referred to this—to report grievances in relation to pre-publication publicity. He rightly said that there had been none. But, as the JCHR report says, the notion that no complaints are made because it is a useless thing to do is simply not right. First, it costs nothing to make a report to the Press Complaints Commission. Secondly, it has very real powers over its newspaper members. It can and does make them publish retractions and apologies. So I do not agree with what it and my noble friend have asserted.

To summarise, I sincerely believe that the case for this most important of limitations on press freedom, albeit put forward with sincere concern for a most highly valued section of our community, is unsafe. Surely, the onus is on those who would restrict press freedom, especially to a single group and in a way never ventured before, to prove beyond reasonable doubt that such a change is unarguably essential. But, as I have endeavoured to show, the Government’s lack of direct relevant evidence as to the present extent of pre-charge publicity affecting teachers is all but total. It is that publicity, and that alone, which Clause 13 addresses. Not only is the need for the clause wholly unproven but it could and will unfairly disadvantage pupils and, in the worst cases, prevent teacher abuse ever seeing the light of day if a charge for whatever reason, and there are many, is never brought or if a school fails to bring disciplinary procedures against a teacher, and there are many reasons why that might be the case. Nor will truth be a defence, as I have indicated. For those main reasons, I propose that Clause 13 should not stand part of this Bill.

[Baroness Hughes of Stretford]

My Lords, I did not think that there would be anything for me to say on the clause stand part debate but I want to make one broad comment. When I opened the consideration of the first group of amendments, I introduced the criterion that one of the bases on which we should make a judgment about this matter is the basis of the evidence. In summing up that debate, I pointed out that the Government have not produced what the Minister said was important; namely, an evaluation of the impact of the current measures on reporting of pre-charge allegations against teachers. The whole Committee has to be very grateful to the noble Lord, Lord Phillips, who has researched this and has produced some figures today, which look remarkably small in terms of the incidence of pre-charge reporting of allegations against teachers.

Today, I will go no further than to say to the Minister that, at the very least, he has to come back to every Member of the Committee before Report with as definitive information and statistics as he can gather on the current incidence of the reporting of cases against teachers before charges are made and some evaluation of the quality of that evidence. One point that I should make to the noble Lord, Lord Phillips, is that I think that his figures are very compelling. I cannot make a judgment today on whether they are the total number of cases or not. It may not be possible to get that information, but the Committee, in deliberating further on Report, must have the best information that the Government can put forward on that matter and an evaluation of how robust that information is so that we can make a judgment.

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[Lord Hill of Oareford]

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

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

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

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

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

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

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

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

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

[Lord Phillips of Sudbury]

As before, I am grateful to the Minister. I ask him to reflect on the statistics, as the noble Baroness, Lady Hughes, invited him to do. It is essential that the unions provide us with concrete examples of pre-charge newspaper reports of a salacious nature, because so far they have not produced one. The only reports they have produced have been four-line factual reports. They must produce pre-charge reports.

Finally, the noble Lord, Lord Hill, berated me—no, not that. He would not do that.

[Lord Hill of Oareford]

That would be libel.

[Lord Phillips of Sudbury]

No, it would be slander. He very reasonably said, “Look at the end of the JCHR report where it exonerates the Government”. Indeed it does, but how it does is beyond my tiny brain to understand. I suspect that the committee was confused.

[Baroness Stowell of Beeston]

As a member of the Joint Committee on Human Rights, I feel that I ought to respond to that point. I am very sympathetic to the points that have been made, particularly by my noble friend Lord Black of Brentwood. It is my experience in the time that I have been on the committee that its conclusions are made very carefully, after a lot of very careful deliberation. I do not have any experience of the committee concluding in that way without being absolutely confident in its views. It is worth reinforcing that point.

[Lord Phillips of Sudbury]

I am grateful to the noble Baroness, and I would have been more cautious in my remarks had I known she was here. I think they are blinded by the numbers of allegations thrown around. Those tables are unscientific to an extraordinary extent. Let us remember that all we are interested in is pre-charge newspaper publicity. If the noble Baroness reads her long report, she will find no satisfactory evidence of that. If it is there, let us please have it. On that basis, I shut up.

Clause 13 agreed.