Education Bill

Lord Sutherland of Houndwood Excerpts

Tuesday 18th October 2011 Lords Chamber

[Baroness Massey of Darwen]

My Lords, this is indeed a complex issue, as illustrated in the previous speeches. It was debated extensively in Committee and many issues have been raised again today. I was not planning to intervene here, but I am prompted to do so by the number of teachers who have contacted me and whom I have spoken to about searching. I wonder whether the Government realise and understand just how concerned teachers are about this and how distasteful they find it to have to do this in school. It is not only an issue of the rights, mentioned many times already today, of children, schools and teachers; I think it is a matter of common sense. There is a risk that searching a child in a school could destroy trust between teachers and pupils and have a detrimental effect on the ethos of a school. Many teachers have said exactly that.

I have one small anecdote: I was speaking today to the Children’s Commissioner, who said that she had also had many representations from teachers about this issue. She told a story about a 12 year-old boy who was on a newspaper round with a friend of his. The newspapers have to be cut out of a plastic band when they are given out for distribution to the boys and girls. One of the boys had put the knife used to cut the band into his pocket by mistake and ended up in school with it. He was searched because someone said that he had a knife and he was excluded from the school. There is a great danger that without excellent guidance, that kind of thing will go on.

Of course, there should be training and a careful exploration of the issues within the school. But it is important to have strong, clear rules about what is brought into school and strong enforcement of those rules, involving parents and the community. That should be emphasised in guidance—in fact, it should be the first lines of any guidance on prevention. Many good schools already do that. They are tough about bringing things into schools because that is in the school rules. I hope that the Minister will consider the amendments because this is a very serious issue for teachers and schools, and liable to be very destructive unless handled carefully.

[Lord Sutherland of Houndwood]

My Lords, I wish to comment briefly on Amendments 8 and 10, and to give my warm support to Amendment 8. We had an important debate on that amendment in Committee and the Minister pointed out the difficulties with primary schools. The difficulties have been met in a reasonable way, I believe, and I hope that in the spirit of good compromise all round we might move with the amendment and see it eventually in the Bill.

On Amendment 10 and following the remarks of my colleague, the noble Baroness, Lady Walmsley, guidance is immensely important—at least as important as what is in the Bill. I hope that the discussions that she seeks can be taken forward, and I hope that guidance, especially from the Secretary of State going down to schools, can be liberally sprinkled with the word “normally”. This is a very important word. It is not a weakening but indicates what the standard is and what good practice is meant to be. It indicates strongly that if the guidance is not accepted in any set of school rules or school practice, there has to be a very good reason that can be stated either when the inspection system requires it or alternatively, sadly, when it comes to exclusions or even court cases. I stress that the difficulty we had in Committee was over legislating for every item that might be searched for or for every individual case in which a search might be made.

It is difficult to specify each case. At one time who would have dreamt that we were supposed to use plastic cutlery on airlines? Yet that has come to be. We would rather have general guidance indicating good practice and good sense with the use of the word “normally” and therefore a requirement to give a reason for a change in what has been regarded as good practice until now. I ask the Minister to look closely at Amendment 10.

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[Baroness Hughes of Stretford]

My Lords, I speak to Amendments 17, 19, 21 and 29, and also support Amendment 15 and Amendments 24 to 28 that the noble Lord, Lord Low, and my noble friend Lord Touhig have spoken to. In particular, I agree with the noble Lord, Lord Low, that Amendments 24 to 28 have, in quite large measure, been addressed by the guidance that we received from the Minister yesterday. I am pleased that, certainly at the stage of the review panel, which is the final stage in the process of reviewing an appeal, the Government have seen fit to make provision for most of the things demanded in Amendments 24 to 28: for a special needs expert to give their views, for the parents to have a right to that, for the parents to be told about that, and so on. That is all welcome.

However, the Government guidance does not address Amendment 15, which is similar in intent to our Amendment 17. They both seek to ask—the noble Baroness, Lady Warnock, just alluded to it—whether we can make sure that relevant information, particularly about a child’s special educational needs and especially unidentified needs, has been brought into the process not at the final stage of the review panel but at the very earliest stage of the head teacher’s decision and particularly at the point at which the responsible body—that is, the governors of the school—has been asked by parents to review that decision.

Amendments 17 and 19, in particular, concern the exclusion of pupils who have unidentified special needs. There is a principle of natural justice underlying the amendments: that where a child is at risk of exclusion, the decision-maker should have the full facts about any special educational needs—not at the final stage, as I say, but at the earliest possible stage. This is particularly important where needs have not been identified, so these amendments would ensure that children with special educational needs but whose needs have not been adequately addressed by their schools are not permanently excluded. In Amendment 17, that is by ensuring that when “the responsible body”—that is, the governing body—is making the initial decision on whether to affirm the head teacher's decision, it must,

“consider a report … from the special … needs co-ordinator”,

or expert. In Amendment 19, it is by ensuring that when the review panel is considering the case at the final stage, it has a report.

I accept that, alongside Amendments 24 to 28, Amendment 19 has largely been covered by the Government, which is great. Yet in relation to Amendments 15 and 17, while the Minister’s letter accompanying that guidance says that the responsible body as well as the review panel should take account of any relevant information in relation to pupils’ special educational needs when reviewing the decision to exclude there is, first, no requirement for the head teacher to take cognisance of that information when taking the initial decision to exclude and, at the level of the governing body in deciding whether to review that decision there is, secondly, no right for the parent to have a special needs expert. The guidance refers simply to the governing body having information on the child's special educational needs already held by the school. It does not precisely cover the circumstances where such needs have not been identified because it simply refers to the school making available to the governing body information that it already has, not seeking a wider assessment of the special educational needs that the child may have.

Surely it is better to have this expert view early in the process so that an exclusion may be prevented rather than only at the final stage, when a review panel is deciding whether to endorse the decision. That is particularly so given that the review panel does not, according to the Government's proposals, have the power to reinstate the pupil. I very much support Amendment 15 but if the noble Lord, Lord Low, decides not to press that amendment then I give notice that I would like to take the opinion of the House on Amendment 17, which would similarly bring the special needs expert person into the process earlier on to prevent the exclusions.

Amendment 21 would empower the exclusion review panels to require the schools to reinstate a pupil if they are satisfied that that is the right thing to do. We had a long debate about this in Grand Committee, when there was a very strong view across the Committee that this was a principle of natural justice—that if a decision made against someone is later found to have been flawed, that decision should not stand. Yet that principle is not upheld under the clause and the right to insist on the reinstatement of an unfairly excluded child is withdrawn.

In Grand Committee the noble Baroness, Lady Walmsley, among others, expressed similar concerns. It is rather surprising that the only amendment in relation to the power to reinstate has come from me and my noble friends, because I thought that the consensus of opinion in Committee was in support of that. I accept that heads may be in a difficult position if a panel were to reinstate, but we also had a sensitive discussion in Grand Committee about what should prevail in those circumstances. I think we agreed that given the impact on the child of having a decision by the review panel to reinstate, that is a far better outcome for the child, even if after discussion the child goes to another placement because of all the issues that have preceded that decision. It gives the child some rights in relation to flawed decisions which, at the moment, are not contained in the Bill.

Amendment 29, briefly, would require,

“a school to retain an excluded pupil”,

on its school roll,

“and to fund the pupil’s education until the pupil is no longer of compulsory … age”.

Our intention here was that the schools should retain financial responsibility but, more importantly, the responsibility for progressing that child and for their final outcomes in whatever alternative provision they went into. The intention was twofold: first, to give schools the opportunity to have a second thought before making the final decision on exclusion, knowing that they would retain responsibility for a child, as a kind of check and balance in that system and, secondly, to make sure that the school has some responsibility for the final outcomes for the child—even if the child goes elsewhere.

The Minister has sent me a letter and the department has issued a press notice on the pilots that the Secretary of State has announced, which are not the same as those proposed in our amendment but go some way to exploring the potential for schools to have responsibility for arranging an alternative decision. It is not the same as giving schools the responsibility of keeping a child on the roll. However, it involves the schools having the finance that goes with arranging alternative provision and the responsibility for ensuring the equality of that provision and for staying in touch, albeit more informally, with what happens to that child. I welcome that provision and I look forward to hearing the outcome of those pilots.

Although there is some movement in relation to Amendments 19 and 29 in the guidance, if the noble Lord, Lord Low, does not press his amendment to a vote, I would like to take the view of the House on Amendment 17.

[Lord Sutherland of Houndwood]

My Lords, I welcome the movement that there has been on the principles of Amendments 19 and 29 because they are sensible principles. The moves of the Government go some way to reassuring me there but I want to comment on Amendment 21, which is clearly a crux amendment in terms of overturning the powers that are specifically included under subsection (1) of the proposed new clause in Clause 4(2)—the power of a,

“head teacher of a maintained school”,

to exclude permanently.

I want to retain that power and I do not wish to give the review panel the powers to overturn it. The reason I give for that is that it would produce a virtually impossible situation for both the school and the pupil. The case would be a cause célèbre by the time it came to this stage and it would not do either any good. There is sufficient safeguard in the Bill for the school to be very careful before it moves to such an extreme conclusion. The safeguards come in subsection (4)(c) of the proposed new clause in Clause 4(2), where it is hinted—indeed, it is said explicitly at one point—that the review panel may consider the procedures of the responsible body as flawed,

“in the light of the principles applicable on application for judicial review”.

That seems a very serious warning to a responsible body, be it a head teacher or a governing body, before making such a final judgment.

I would hope that that would be sufficient to deter bodies from, not frivolously, but perhaps injudiciously or in some weakening sense, causing an individual to be excluded unnecessarily. The suggestion that the school would be considered responsible for the financial provision for the future education of that individual is a fair warning to the school. Even if the higher motive did not prevail, the lower one might well do so in the school taking responsibility for what could be a very expensive course of education. I beg to differ on Amendment 21.