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House of Lords Hansard
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Education Bill
30 June 2011
Volume 728

Committee (2nd Day)

Relevant document: 15th Report form the Delegated Powers Committee

Clause 2 : Power of members of staff at schools to search pupils

Amendment 13

Moved by

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13: Clause 2, page 3, line 43, after “rules” insert “reasonably”

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I shall speak also to Amendments 21, 22, 23 and 24 in my name which are grouped with Amendment 13. We ended our session on Tuesday by reaching Clause 2. We had a very interesting debate about whether there should be statutory training for any teachers who are considering doing a search of a child. This and the subsequent group of amendments refer to other aspects of the measures which extend the powers to search. This group is about tightening up what can be searched for and for what reasons; the next group is all about whether you can search alone and children of a different gender.

Amendment 13 probes issues concerning the burden of proof and highlights the potential problems that arise for schools as a result of the expansion of the powers. I am sure that head teachers and other members of staff would wish to have that power clearly defined and be without fear of contravening the Human Rights Act or prosecution for an offence against the person. Teachers are not law enforcement officers and they have no reason to risk assault upon them by insisting on searching a pupil who is capable of a violent reaction. Equally, few teachers will wish to use the power if they feel that it will jeopardise their relationship with pupils and generate a climate of suspicion in their school.

A simple Google search of the phrase “primary school rules” illustrates the need for more careful consideration of these provisions. They vary enormously. I wish to insert “reasonably” so that the Bill will say that a search can be made for,

“any other item which the school rules reasonably identify as an item for which a search may be made”.

Some school rules do not allow toys to be brought into school, but it would be quite disproportionate to body-search a child for a little soft toy brought in for comfort. As the Bill is not clear on what exactly is meant by school rules, many schools might feel that they need to revisit their rules, such as: sweets, cans and glass bottles are not allowed in school. When they do so, I would remind them of their duty to consult the pupils. In any case, rules are more likely to be followed if the children have been involved in their drafting and have signed up to the need for them.

The Joint Committee on Human Rights has called on the Government to issue guidance which makes it clear that,

“only items capable of being disruptive to teaching or learning, threatening to the safety of pupils and teachers, or which breach criminal law can be identified in school rules as items for which searches of pupils can be made”.

That is the sensible approach, and inserting “reasonably” indicates that schools must not go over the top.

Amendments 21, 22 and 23 were suggested by the JCHR in its report on the Bill. The committee criticise the very wide powers to examine and erase data or files on a mobile phone or other electronic device. We all want to give heads and teachers the powers they need to keep discipline and to prevent bullying, which is why I do not oppose the extension of these powers. It is clearly legitimate for a teacher, if he has reasonable cause for suspicion, to see whether there are any files on a confiscated phone that could be used for bullying or distribution of images that the subject of the images would not want the world to see—even pornography. However, we need checks and balances. The JCHR points out that there is nothing in the Bill to restrict the scope of the powers in relation to the purpose for which the power is to be exercised. That should be linked to the reasons for the search and the justification for the suspicion that an offence has been, or is about to be, committed.

Given the potential for serious interference in the pupil’s rights to respect for a private life, the JCHR proposed Amendments 21, 22 and 23, about which I questioned the Minister at Second Reading. In the absence of an answer, I have tabled them myself. The amendments make it clear that it must be established that the device is likely to be used for something that is either unlawful or contrary to the school rules.

I tabled Amendment 24 because I remained concerned about the power to erase files. There may be all sorts of things on the phone that are very private to the family—things that the family would rather the school did not know. There may also be things on the phone that the pupil may not want the school or his parents to know—for example, that he or she is gay. Let us bear in mind that the pupil and his phone may be entirely innocent. Indeed, pupil A reporting to a teacher that pupil B has some questionable images on his phone may, in itself, be an act of bullying by A on B—trying to embarrass Bill or get him into trouble. Pupil A may want to expose the fact that B is gay. I would call that homophobic bullying, and this Government have made clear their determination to stamp that out. I have tabled Amendment 24 to ensure that guidance includes consideration of the private life of both the pupil and his family, and the circumstances in which it is appropriate to involve parents in the deletion of files.

I ask my noble friend the Minister whether the Government will conduct a review of the existing search powers—as was recommended by Sir Alan Steer to the previous Government, but not carried out, before they extended the powers. We need more post-legislative, as well as more pre-legislative, scrutiny. Will the Government publish draft guidance relevant to the search powers before Report stage? Will such guidance be statutory? Will the Government accept these amendments? I beg to move.

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My Lords, I support the amendments of the noble Baroness, Lady Walmsley. I shall speak also to our Amendment 25. As has already been identified, under the previous legislation school staff already have the power to search for and seize from pupils prohibited items, including weapons, alcohol, drugs and stolen goods, and we are very conscious of the sensitivities in extending those powers.

Therefore Amendment 25 places on the Secretary of State a requirement to give more explicit guidance as to what should be included in the school rules, and on the items for which searches can be made. This amendment would very much enable some of the concerns of the noble Baroness, Lady Walmsley, to be followed through. I also echo her point that if guidance were to be produced, it would be helpful if it were in the form of draft guidance on which we could all comment.

In addition, there is currently a statutory definition of school rules in maintained schools, but there is no statutory definition of school rules in independent schools, which will, in due course, include academies and free schools. Therefore, this underlines again the case for the Government to consider and advise very carefully on what can and cannot be banned under school rules for all state-provided schools. As the noble Baroness, Lady Walmsley, has mentioned, this was picked up in the report of the Joint Committee on Human Rights, which said:

“There is a risk of the new provision falling foul of that requirement”—

to protect pupils—

“unless the new power to search is circumscribed in some way by reference to the purpose for which such a search may be made”.

The noble Baroness, Lady Walmsley, quoted some useful paragraphs from the report, but that one is also helpful.

When we debated this on the first day in Committee, a case was well made on the issue of mobile phones. For one person a mobile phone is some sort of weapon or something that can be used in a derogatory way; for others it is a teaching aid. We need to be clear about pupils’ reasons for carrying mobile phones in school. In some cases it is a link to important caring responsibilities and so on. Therefore, we must be very careful about proscribing some of these things and the wording that is used.

We have seen the 15th report of the Delegated Powers and Regulatory Reform Committee, which was handed out as we came in. It draws the attention of the House to the fact that the department’s own memorandum on its delegated powers,

“does not explain why it is thought appropriate that the list of articles in section 550ZA(3) that may be searched for … should in future be capable of being supplemented by the school in question, apparently to include any kind of article whatever”.

Again, the Delegated Powers Committee questions the extra powers that the Government are trying to give themselves without being explicit about what the articles should be and what it is appropriate to take into a school. Therefore, I hope our Amendment 25, which makes it necessary for guidance to be produced by the Secretary of State on what is and is not to be prohibited by school rules, is a common-sense measure. I hope the Minister will agree and that he and noble Lords will feel able to support the amendment.

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My Lords, I shall speak to Amendment 14 in this group, which addresses two angles of concern. The first is about definition. My noble friend Lady Walmsley said that it is not clear what is meant by school rules. The noble Baroness, Lady Hughes, also said that they needed definition. That is the purpose of my amendment, which requires a definition to be made by the Secretary of State. I say this trailing my coat, since there may well be a definition of school rules buried somewhere in law. The waving of the corn on my left suggests that that is the case. However, it is not only a matter of what is in the school rules, but of whose authority those rules have. School rules can be made by head teachers on their own in solitary majesty, or by the head teacher with the heads of department, and with or without the endorsement of the school governors. Each would have an effect on what is in the rules.

My second concern is that rules, if they are to succeed, should have the broad understanding, sympathy and support of the school’s pupils. Should some guidance be laid down as to how that is to be achieved? Should it be through school councils, for instance? In small primary schools with small children, the rules could be talked through at the beginning of every term and agreed to by the children. The courts will want to know what the school rules are. I regret to say that we are on very litigious ground. It is essential that the courts should have a definition before them or a great deal of money and time will be wasted by the courts in arriving at a definition of their own. That time and money should be spent by us on deciding now, or by giving the Minister the power and responsibility to define what a school rule is.

With it, I would give him the duty to get advice from somewhere on what should be in school rules in general terms, and on how school rules should be introduced in a way that means they will have the support of the school’s pupils. This is not in the amendment, although I think it will emerge on Report. Children will then think that the rules are part of the way they live. Therefore, when some rebel child starts scrawling obscenities on the walls or doing other unsociable things, it will not be just him versus the staff with an interested group of children listening, watching and occasionally egging on the baddy; it will be the school community as a whole saying, “This is not the way this place runs. This is our home. Please look after it”.

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My Lords, I follow on briefly from what the noble Lord, Lord Elton, has just said. I have experience of school councils working extremely well. Not only do they discuss the usual problems of boys’ toilets, dining, eating snacks and so on but they discuss discipline issues. I am a governor at a primary school and the youngest children are involved in deciding on the school rules and discipline. As a result, a contract is passed down to each classroom regarding how the children should participate and how they should behave in the school. I am glad that the noble Lord mentioned school councils. I think that school councils should be included somewhere in the Bill in relation to consultation with school pupils. In my experience, that is one of the best ways of consulting pupils in deciding what the school rules should be and how they should be applied.

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My Lords, before I respond to the points raised in today’s debate, I should like to pick up briefly on the issue that we were discussing when we ended our session on Tuesday, including the points raised by my noble friend Lady Walmsley and other noble Lords about training in relation to searches. In the intervening day and a half, I have reflected on some of those points and I agree that some additional advice to schools would be useful. Therefore, I am happy to commit to recommending to head teachers in guidance that, when they designate a member of staff to undertake searches, they should actively consider whether that member of staff requires any additional training to enable them to carry out their responsibilities. This revised advice will be published in July before the start of the summer holidays.

So far as concerns today’s amendments to and discussion on Clause 2, the main purpose of the clause is to try to give schools as much freedom as possible to respond to their own circumstances and challenges. We know that under the existing legislation head teachers and authorised members of school staff can search for knives and weapons, alcohol, illegal drugs and stolen property. The current situation, as set out by my noble friend Lady Walmsley is that the person conducting the search must be the same sex as the pupil being searched and the search must be witnessed by a member of staff. Where practical, the witness should also be the same sex as the pupil. That is where we are now.

With regard to the provisions in Clause 2, we propose to extend these powers to allow schools to search for any article that they suspect has been or could be used to commit an offence, cause injury or damage property. It will also allow them to search for items banned by the school rules where they have been identified in the rules as an item which may be searched for.

In addition to adding to the range of items which may be searched for, the provisions will make changes to how searches can be conducted, as my noble friend said. They will allow searches to be carried out by a member of staff who is of the opposite sex to the pupil being searched and also searches without a witness. I emphasise that these changes are subject to what we believe to be strict safeguards. Searches can take place only where the searcher reasonably believes that there is a risk that serious harm will be caused to a person if they do not conduct the search immediately. Therefore, these powers could not be used to search for innocuous items banned under the school rules; there must be a risk of serious and imminent harm.

Amendments 25, 13 and 14 relate to searches being conducted under the school rules provisions. Perhaps I may briefly set out our intention behind this provision and the safeguards here that I think will help to guard against it being used inappropriately.

Our intentions in including a specific power which enables teachers to search for, and confiscate, any item identified in the school rules are to enable teachers to deal effectively with items which, although not harmful, can still cause problems in the school.

The current powers to search pupils without consent are already subject to a number of safeguards. Searches can be carried out only by the head teacher or someone authorised by them to search; they can take place on school premises or off the school premises only when the member of staff has lawful control or charge of the pupils; and they can be conducted only if the staff member has a reasonable suspicion that the pupil is in possession of a prohibited item. The pupil cannot be required to remove any clothing, other than outer clothing.

The school rules provisions introduced by this Bill will be subject to additional safeguards. First, an item can be searched for only if it is identified in the school rules as an item that can be searched for; and secondly, the school rules must be determined and publicised by the head teacher in accordance with Section 89 of the Education and Inspections Act 2006 or, in the case of academies, in accordance with regulations that mirror Section 89. That point was raised by the noble Baroness, Lady Jones of Whitchurch. This means that the head teacher must publicise the school behaviour policy, in writing, to staff, parents and pupils at least once a year. Furthermore, the use of force is explicitly excluded from this provision. These specific requirements will help to ensure that teachers, pupils and parents will know which items are subject to searches. The power is, in the Government’s view and in that of the Joint Committee on Human Rights, compatible with convention rights.

I turn to the test of reasonableness and the points raised by my noble friends Lady Walmsley and Lord Elton. I understand the thinking behind the amendment moved by my noble friend Lady Walmsley; she is obviously concerned that schools could include frivolous or unreasonable items in the list of items that can be searched for. While I do not believe, and I do not think that she would believe that in practice governing bodies and heads would be likely to behave in a frivolous way, we think that there are existing safeguards in place which govern how schools set their school rules. That relates to the question posed by my noble friend Lord Elton. These are set out in Sections 88 and 89 of the Education and Inspections Act 2006. Section 88 requires that the governing body of a school must make a written statement of general principles from which the head teacher will draw up the school’s behaviour policy, which includes the school rules. The governing body is required under Section 88 to consult parents and pupils as part of this process. I hope that in some way that will reassure my noble friend. The governing body is also required, when making the written statement of general principles, to have regard to guidance issued by the Secretary of State. There is also a legal requirement on head teachers to have regard to this statement in determining the school rules and to bring the school’s behaviour policy to the attention of staff, pupils and parents at least once a year.

The Government intend to use that guidance, among other things, to explain the nature of the obligations of necessity and legitimate aim under Article 8.2 of the European Convention on Human Rights. As with public authorities generally, the head teacher in drawing up the school rules would have to act reasonably. So I hope overall that my noble friend may accept that there are safeguards in place and that with those safeguards we should feel more reassured that we can trust schools to judge which items they need to search for in the context of their particular school.

I turn to the content of electronic devices and the examination and deletion of what might be on them. Clause 2 would permit the member of staff who seizes an electronic device to examine any data or files on the device, if they think there is good reason to do so. Following such an examination, the person may erase any data or files from the device if they think there is good reason to do so. I think that this point was accepted earlier in the week. There is agreement that the misuse of mobile phones and other electronic devices is a growing problem in our schools. According to Bullying UK, around one in seven young people have been threatened or harassed by mobile phone.

A study by the Association of Teachers and Lecturers published last year in March, suggested that one in seven teachers had been the victim of cyber-bullying by pupils and parents. I was struck that the Association of School and College Leaders welcomed this provision in its evidence to the public evidence session for this Bill in the other place as a way of schools dealing with cyber-bullying without involving the police, which is an important point. We do not want to get to the point where schools have to call the police to deal with matters when they could deal with them with some common sense and in a safe and orderly environment within the school.

I understand the concerns of my noble friend Lady Walmsley that the provisions in the Bill might give members of staff carte blanche to examine or delete the content of a pupil’s mobile phone. But we believe that by requiring the member of staff to have a good reason before doing so, and to have regard to guidance, the clause protects pupils from random searches of their property and provides a robust test which must be passed before a pupil’s personal information on his or her mobile phone can be deleted.

I did, however, listen to what my noble friend said and obviously like her read the comments from the JCHR. In order to address those points, I think we should make more explicit in our guidance that any examination or erasure of data or files must be justified. By this I mean that the guidance should make it clear that the staff member must reasonably suspect that the data or file on the device in question has been, or could be, used to cause harm, to disrupt teaching or break the school rules in some way. I can also commit to the guidance providing advice on the circumstances in which data can be erased and when that can be handed to the police. I hope that that provides my noble friend with some reassurance.

My noble friend also raised the point about the need to respect the private life of the pupil and the pupil’s family, and on the circumstances in which it is appropriate to involve the parents of the pupil. I understand her concern that pupils are protected from any unnecessary intrusion into their private lives. The Secretary of State’s guidance will make it clear that any examination or erasure of data or files must be justified. It will also explain to schools the nature of their obligations under the ECHR and emphasise the importance of respecting a pupil’s personal information and right to privacy.

As my noble friend Lady Walmsley suggested, I would be happy to share with her and other Members of the Committee who would be interested a draft of the Secretary of State’s guidance in advance of Report, so that she can be assured of its helpfulness and we can benefit from their expertise.

I hope that that reassures noble Lords that checks are in place to ensure that these powers could not be used inappropriately. I have committed to include additional safeguards in guidance and to share that guidance as the Bill progresses through this House. On the basis of those reassurances, I hope that my noble friend Lady Walmsley will feel able to withdraw her amendment.

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My Lords, I would be very grateful if my noble friend would include me in that correspondence. I do not yet understand why, under any circumstances, a teacher should be able to delete something from a mobile phone. Surely, the point of finding something is that it then becomes evidence that can be used. In fact, it may be important to show it to the child's parents so that the parents become aware of what is going on. I do not understand the need to delete.

I am also concerned that while one might want and need under some circumstances to explore what is happening on a child's mobile phone, any teacher doing so will discover a lot of stuff that is personal and irrelevant. There is a problem over how that is dealt with. Perhaps it should be done by somebody not involved in teaching the child who can therefore keep separate any knowledge gained from looking at the mobile phone. I agree that there has to be this power in the Bill, but it has to be carefully used.

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We need to consider not only the privacy of the child, but the privacy of the person at the other end of the call who may be a parent. The exposure of the inside workings of a family could be quite damaging to the family if it were discovered or discussed. You cannot have a Chinese wall inside a telephone so far as I know, so I agree with my noble friend and I should like to be included on the round-robin list.

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My Lords, I want to pursue an issue that I mentioned in passing in my introduction: that of mobile phones. I refer not to whether a child could be searched but to whether they are carrying a mobile phone in the first place. My noble friend Lord Knight made the point that in the olden days pens could be scurrilous and used inappropriately, so we have to be a bit careful about what we are proscribing here.

I believe I am right in saying that the latest draft guidance on searching states:

“Ministers have already announced their intention to make regulations to add to the list of prohibited items (cigarettes and other tobacco products, pornography, fireworks and specific personal electronic devices (mobile phones and iPods etc))”.

I read that to mean that mobile phones and iPods will be included on the list of prohibited items. I hope that we can have a broader debate on whether that is sensible in the round because, as I said earlier, mobile phones can have a range of functions in a school, not all of which are damaging or unhelpful to the education process.

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I want to re-emphasise the importance of parents being aware of the school’s behaviour management policy and I welcome the fact that that duty exists. In that behaviour management policy, it will be an important responsibility of head teachers in schools to indicate the items that pupils should not be carrying on their person.

I also emphasise the dangers of mobile phones in schools—something that I have experienced on a regular basis. The amount of bullying that goes on, and the passing of offensive messages and images, is a real problem no doubt in secondary schools but certainly in primary schools. The fact that schools, parents and pupils—one hopes through the school council—are involved in putting together the behaviour policy and understanding that will be really important for our school system.

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I want to explore a little more whether a school ought to be able to search and erase material, as mentioned by my noble friend and the noble Lord. Should a mobile phone be a proscribed item for every child in the school? If that is what the Government are proposing, I question that approach and hope that the Minister can clarify the issue.

I agree with all noble Lords that bullying is obnoxious and is a form of terrorism towards children and those exposed to it. It is absolutely invidious and needs to be dealt with very strongly indeed. I believe that if a child is using a phone for such a purpose, they will be using it not only in school but more likely outside too. I question an approach that, instead of instilling responsible behaviour towards mobile phones, seems to allow schools to issue a blanket ban on bringing them into school. A more effective approach would be to enable a school to ban the use of a mobile phone by an individual pupil who has shown to be misusing it rather than applying a blanket ban on bringing phones into school. If that is the approach the Government are proposing, I support them. However, I believe that the other approach is dangerous and contrary to the way in which we deal with other kinds of issues. We are allowed to take mobile phones into the Chamber but, I guess, if we started taking pictures of Members opposite we would be banned—and quite rightly so.

I would be grateful if the Minister could, first, say whether the Government’s approach is to allow a school to issue a blanket proscription and, secondly, if that is so, to comment on the points that I have made.

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My Lords, I support my noble friend. I was not going to speak, but this important point strays into another agenda that is relevant here because we could be doing something that is not great. When I have visited schools, I have seen that mobile phones present a real issue—a huge potential advantage and a current problem. Schools are struggling to know what to do.

Coincidentally, on Tuesday I was in a good secondary school in Cambridge that, to be honest, was not faced with huge behavioural problems. I accept that it was not your average challenged secondary school. Its approach to mobile phones gave a clue as to how important they will be on the information technology agenda. Given that the Government do not have much of an IT agenda, with the abolition of Becta we must look at what schools are doing on that. I hope that in the coming months we might get to the point technologically at which we can as a society support schools in using devices such as mobile phones as an essential part of learning in school and with links to home.

That is not for now and that agenda is not quite here at the moment. I would hate to do anything now that would give a message that would make it difficult for some unconfident schools to move along that road in future years.

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I shall try to reply briefly to some of those points. I agree with the point made by my noble friend Lord Storey and the noble Baroness, Lady Morris, that one must be careful not to legislate in a blanket fashion that stores up problems for later. I listen in particular to my noble friend Lord Storey because he knows what he is talking about. He has day-to-day direct involvement and we should listen carefully to his reminder of the problems faced by schools. However, I also accept that a lot of technology can be used for good or for ill. That is to do with what people make of it rather than with the nature of the technology.

In answer to the noble Baroness, Lady Hughes, our purpose in a number of these approaches is to give individual schools discretion in what to do, taking their circumstances into account. On the regulations that list the items mentioned by the noble Baroness, we have not laid them before the House because I thought that it was important first to take these issues through the House and Committee and to have this debate. We are not seeking to have a blanket ban on mobile phones, but we want to reach the point at which schools can exercise discretion. More generally, the Government will need to take into account the points that have been raised.

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Although the Government do not want to move towards a blanket ban on mobile phones, is it their current intention, notwithstanding any shift brought about by this debate, that the regulations will allow an individual school to impose a blanket ban on all its pupils?

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I believe that that could be done at the moment. That would not therefore be a change, and overall we want to give schools discretion.

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My Lords, this has been an interesting and illuminating debate. Before dealing with the issues debated today, I thank my noble friend for his comments on our debate on Tuesday. He told us that there will be advice in guidance from the Government to head teachers that they should consider the level of training of the teacher who is designated to be allowed to search. That is all very well, but what happens if they do not do that? What happens if the school designates a teacher who has not had adequate training? What if someone is hurt and the teacher in question is not trained? Would my noble friend like to answer now or would he prefer to come back to me on that?

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I will come back to my noble friend.

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I thank my noble friend. A number of points have been made in the debate today, and I absolutely agree with those who have emphasised how important it is that schools consult parents and pupils when setting their school rules. Indeed, I believe my noble friend Lady Sharp and I were slightly influential in getting that duty to consult pupils into the Education and Inspections Act 2006, if my memory serves me correctly.

It is incredibly important that pupils and their parents understand what the school rules say. It is quite right that the Government do not seek to specify exactly what a school bans and what it will search for if that ban is flouted, but the rules should state why the school is going to ban the items that could be used. The school should ban only the things that could interfere with teaching and learning or that could be used to commit an offence, cause disruption in the school or be otherwise unlawful. Schools should not go over the top and be silly about what a pupil might want to bring in.

As for phones, my noble friend Lord Storey, who the Committee will know is still a practising head teacher, has reminded me that schools already deal with these matters in their own way. Most schools have a mobile phones policy—indeed, many local authorities such as my noble friend’s own authority in Moseley have one—and many schools are sensible enough to allow children to bring in a mobile phone if the parents feel that they would like the child to have it for their own safety or on the way home in case they have a problem with their transport and need to contact the parents. However, they insist that the phone is either handed into the school office during the school day or locked up in a locker. That is quite a sensible approach, as the phone cannot be used to distract lessons or to take photographs of other pupils—one head teacher who supports what the Government are going to do told me recently of a boy even taking photographs of one of the girls in the toilets. We do have to bear in mind that children sometimes do horrendous things. Of course this is not just about phones; DS games can send messages, and most schools would not wish pupils to use those during lessons, and the more affluent pupils might even have an iPad.

I take the point made by the noble Lord, Lord Knight, the other day that these devices can be used for good educational purposes. This is a difficult matter for schools, which is why it is more and more important to specify that these things should be searched for and confiscated and files deleted only if there is reasonable suspicion that they are going to be or have been used to disrupt, to bully or to do something unlawful.

That is why I welcome what my noble friend the Minister has said about sharing draft guidance with us as soon as possible, certainly before Report. I also welcome what he said about the Government wanting to avoid police involvement wherever possible. Of course the criminal justice system must be involved if a very serious offence comes to light, but I certainly believe—and I see many Members around the Committee today who I know agree with me—that we should not get children involved in the criminal justice system unless it is absolutely necessary. Then, of course, we should deal with them properly, but that is another debate altogether.

I have some questions for my noble friend the Minister. If files are erased and the teacher who erases them has reasonable justification for being suspicious, can the child challenge the erasure? If the child loses files of particular sentimental value to them, such as photographs of the family that they do not have on any other electronic device, what is the challenge?

The noble Lord, Lord Lucas, suggested that the files be searched by a third party who does not have that close relationship with the child—which the teacher/pupil relationship is—just in case there is something that will completely destroy that relationship in future if the teacher knows something about the child’s private life. It is an excellent idea.

In welcoming the promise of guidance, I suggest that, depending on what is in it, we might want to come back to the matter on Report. I thank all noble Lords for their contributions and beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Amendments 14 and 15 not moved.

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Before moving to Amendment 16, I wonder whether I could ask our electronic expert in the corner whether it is possible to raise the volume of the microphones. With the amount of noise going on above us, it is extremely difficult to hear.

Amendment 16

Moved by

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16: Clause 2, page 4, leave out lines 26 to 40

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My Lords, I shall also speak to Amendment 28. We now move to some of the more delicate checks and balances in relation to searching.

The amendments would make it unlawful to search a child of the opposite gender and never, in any circumstances, without another member of staff being present. Amendment 16 refers to schools and Amendment 28 to FE colleges.

As the noble Baroness, Lady Jones, said on Tuesday, searches can be very invasive and unpleasant experiences that cause children embarrassment, anxiety and humiliation. In addition, searches might have different and more pronounced implications for children with a history of physical or sexual abuse, children with a disability or special needs, or children from different cultural backgrounds.

That is why I believe the person should always be searched by a teacher of the same gender and always with a witness. I am not so concerned about searches of property or lockers, although doing that alone can also open up a teacher to allegations of theft, but searches of the person open the door to allegations of improper behaviour if he or she is either alone or of the opposite gender or both. At a time when the Government have found it desirable to bring in reporting restrictions on allegations against teachers, which we will discuss when we reach Clause 13, why are they attempting to open up teachers to this sort of allegation by encouraging them to search a child of the opposite gender alone?

Clause 2(3) allows a member of staff to search a child alone if they believe that,

“there is a risk that serious harm will be caused to a person if the search is not carried out as a matter of urgency, and … it is not reasonably practicable for the search to be carried out … in the presence of another member of staff”.

I believe that those are the precise circumstances in which a search should not be carried out alone. Let us imagine the situation in which the child and the teacher are nervous and hyped up. The child might know that he has a knife or a gun in his pocket—in these circumstances, the police should be called anyway, as carrying a knife or gun is a very serious matter. However, nothing is more calculated to stimulate the child to do something silly than the pressure of an immediate and perhaps forceful search in front of their peers. It is much better to calm the matter down and send for a senior member of staff so that the search can be carried out more safely.

I know that most teachers would be entirely sensible and cautious about something like this, but we must not make bad legislation that has the potential for putting them and the children in danger by doing something entirely unnecessary. I can think of no circumstances in which it would be safe for a teacher to search a child for a knife alone and no circumstances in which it would not be possible to send for reinforcements. If the child is wielding a knife, there is no need to search for it—it is on full view. The teacher has a right under common law to defend himself and protect the other children, and so we do not need this legislation for that situation. However, even then, the teacher would be wise to send for some support.

I believe that these amendments are absolutely necessary, and I beg to move.

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My Lords, our Amendment 17 mirrors much of what is in Amendment 16, but with slightly different wording in that it reinstates the protections that were introduced with very good reasons in the first place. They were to have a witness and for searches to be carried out by members of the same sex. I very much echo what the noble Baroness, Lady Walmsley, has said in this regard. We have touched on these issues in previous debates—it has been a bit of a running thread—but it does not diminish the force of the argument or the need to firm up the checks and balances that we need when teachers are operating in day-to-day school life.

Head teachers already have the power to search pupils. The powers already give teachers and head teachers the power to search, to use reasonable force to control or restrain a pupil, to stop a pupil committing a criminal offence, to prevent injury or damage to property, and to maintain good order and discipline.

In the Commons stages, colleagues debated why these new powers were necessary in addition to the existing ones and when they would be used. The answers at that time from the Government were unclear, and the Minister, Nick Gibb, was unable to give a convincing example of when these new powers would be needed. For example, when would a teacher need to search a pupil’s possessions without a witness being present? Moreover, in the evidence-taking sessions in the Commons, Brian Lightman, the head of the ASCL, said:

“I have been a head for 15 years. I cannot imagine a situation where I would sanction any of my staff searching a member of the opposite sex without a witness present. In fact, I wouldn’t allow anyone to search a member of the opposite sex, full stop”.—[Official Report, Commons, Education Bill Committee, 1/3/11; col. 24.]

Similarly, the representation from the teaching unions made it clear that their members would be very wary of using these new powers.

Perhaps more importantly, children’s rights are paramount in this regard. Many of us will have received the mailing from an alliance of children’s charities raising concerns about the extended search powers. It rightly draws our attention to the protection of children’s privacy in the UN Convention on the Rights of the Child and the Human Rights Act. It agrees with our position that the case for extended powers has not been made. Instead, it urges the Government to conduct a review of how the existing search powers have been implemented before commencing with any new powers. To me, that makes perfectly good sense.

In addition, these powers are so broad that they give teachers greater search powers than a police office would have under the stop and search provisions. For example, in the Police and Criminal Evidence Act 1984 the police powers to stop and search require,

“reasonable grounds for suspicion, before they may be exercised, that articles unlawfully obtained or possessed are being carried”.

Under Section 60 of the Criminal Justice and Public Order Act 1994, stop and search must be based upon a reasonable belief,

“that incidents involving serious violence may take place”,

or that people are,

“carrying dangerous instruments or offensive weapons”.

We do not need to give teachers these additional powers. As the noble Baroness, Lady Walmsley, rightly pointed out, if anything this will endanger the pupil/teacher relationship and put teachers at risk. In all these circumstances, we do not believe that the case has been made for opposite sex searches and searches without a witness. Therefore, we commend Amendment 17, as well as Amendment 28, which applies the same principles to FE colleges. I shall not rehearse the arguments, but we believe that the same ones apply.

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My Lords, I should like to know where the parents are in this. If I were the parent of a child who had been searched at school by a same or opposite sex—but particularly opposite sex—teacher, I think I would be mightily cross if I had not been informed. If I were a head teacher, I would hate to be on the receiving end of a parent’s anger at their child being searched. The witness should ideally be a parent. Has that been thought of in the Bill? Are parents excluded from this procedure? It is an issue that should be considered.

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My Lords, Barnado’s deals with a lot of children who have been groomed for sexual acts. If a child who had gone through that kind of procedure were searched at school, it would have a devastating effect on them. I remember once launching one of our projects for Barnardo’s—I declare an interest as one of the vice-presidents. I put my arm around a young girl because I always like hugging people, but when I did that she flinched like an animal. I wondered why and the counsellor told me that she had been groomed since she was a 10 year-old child. She was now 15 and people showing her any type of affection had a devastating effect on her. Imagine what that girl would go through if she had to be searched at school. I fully support my noble friend Lady Walmsley’s amendment. This is something that should be carefully thought through before we put it into the Bill.

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My Lords, we are in difficult and delicate territory. We accepted that when we discussed related points on Tuesday. However, there is a need to lean in the other direction and expose the argument. My focus is particularly on the question of having another witness available. I realise and accept that being searched by someone of a different sex is a more complex matter, and maybe we need to differentiate these two.

I make the point about whether another witness is necessary by quoting what my noble friend Lady Perry said on Tuesday. “There are crisis incidents” she said, and:

“At that point, a teacher has to take action”.—[Official Report, 28/6/11; col. GC 230.]

I am concerned about the parent who discovers that their child has been injured at school when perhaps an intervention would have made a difference.

This is a difficult point to make, but the issue in principle that we touched on and now face full on today is whether the legislation should preclude the possibility of a teacher exercising judgment. We all have the respect for teachers that we properly should have and we have insisted on the need for professional training and back-up. That is why the training has to be school-wide, not just for a specialist teacher who does this kind of thing. However, can we not leave room in the legislation for crisis incidents and for the exercise of good professional judgment by a teacher in a situation in which we hope none will be tested?

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My Lords, I want to argue against the comments of the noble Lord, Lord Sutherland. One of the benefits of having someone else to act as a witness to a search is that there is a cooling-off period in a crisis when things could calm down; immediate intervention might well escalate the crisis.

My second point, which has not been made so far on this group of amendments, is that there has rightly been much concern about opposite-sex searching. Frankly, there are also issues about same-sex searching because, sadly, there are allegations against staff of homosexual acts, and there might be some incidents, again sadly, of same-sex abuse. I know that is very rare, but that is why we need to have a witness. You can then start to ensure that, first, the situation is de-escalated if it is rising rapidly, and, secondly, with a witness you can balance that with the safeguard of both the child and the member of staff.

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My Lords, not for the first time I find myself welcoming the comments of the noble Lord, Lord Sutherland. I might have this wrong, but the provision seems to be designed entirely to deal with a crisis. Of course, if we think there will never be a crisis, we do not need this section. I say that because paragraph (a) of new Section 6A in Clause 2(3)(c) states:

“the person carrying out the search reasonably believes that there is a risk that serious harm will be caused to a person if the search is not carried out as a matter of urgency”.

That must mean that the person who thinks they have to search is faced with someone in the room making an absolutely open threat, either to the person who might do the searching or to someone else in the room.

Paragraph (b) of new Section 6A says that the condition is satisfied if,

“in the time available it is not reasonably practicable for the search to be carried out by a person of the same sex as P or in the presence of another member of staff”.

I feel strongly that that is meant entirely as a back-up power to deal with a crisis that could not have been foreseen. In considering whether this provision should be in the Bill, that is how we should look at it. We should in no way confuse it with the wider issue of the powers to search.

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Perhaps I could briefly make two comments on this very difficult issue. First, I hope your Lordships might agree that this highlights the importance of teachers and their development and their need to be highly reflected practitioners—not to get drawn into emotional situations but to have that professional capacity to stand back and be dispassionate. I very much welcome what the Minister is doing to help teachers to reflect on their practice with young people.

I spoke with a head teacher of an EBD school recently. He described a particular situation on a school outing. One of the children picked up a piece of glass on the beach, perhaps, and put it in his pocket, and the teacher was told about it by one of the school children and acted very quickly to search the child and take it away. For schools or institutions that deal with high numbers of children with challenging behaviour issues, it might be helpful for teachers to have this discretion. The head teacher’s point was that it was very important for teachers to be able to exercise their discretion and not feel inhibited by too much regulation in the background. I do not have particular experience in that area, but I share it because I heard it recently from a head teacher.

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I understand noble Lords’ concerns about crises, but I want to paint a different picture. In most situations, there will be teaching assistants in the classroom and learning mentors—a whole plethora of support staff who can support a particular situation. If there is a crisis, the best way to deal with it is not to provoke the situation further but to calm everything down. My concern is that if a teacher carries out this act by themselves and no one else is present, it could put them at risk. I can see all sorts of legal actions being taken whereby pupils, particularly at secondary school level, make allegations about what the teacher did to them. The police and law courts might become involved and it might become an absolute nightmare for schools and schooling, so I understand the concern about the crisis that might occur, but I am equally concerned about the well-being of the individual teacher and pupil. To put that teacher in that situation is potentially quite dangerous.

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My Lords, when I think of my own childhood, members of the opposite sex were not the ones who caused the problems. Certainly these days when the staff of many schools are entirely female, you have to allow women to search men, and therefore men to search women, if those are the circumstances in which people find themselves. It must always be advisable to have a same-sex search, and it must almost always be advisable to have a witness, but imagine a situation in which a teacher is alone with a group of pupils and believes that one of the pupils has on them something that they could easily dispose of if they had the chance, whether it was drugs or a weapon. If they were out in the country, something could be dropped easily before they came back.

Searching consists of having the power to search, not actually saying, “Palmer, turn out your pockets”. The pupil would know that the member of staff had the power to search if they did not comply, and would therefore do as requested. This is a necessary part of the structure, but I am sure that no head teacher is going to advise any of their teachers to search when they do not have a witness, except in circumstances when nothing else is possible. I think that we can trust teachers and head teachers to use the clauses as they are in the Bill wisely.

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My Lords, having spent practically my entire life in this country fighting against stop and search, and marching on the streets about it, I can tell you the effect that being stopped and searched has on any human being. Why try to impose this on a child? Teachers have adequate powers with which to take the child away or do all sorts of things, but one should not take away the dignity of the child. In any number of cases when the police could not find anything, they made something up and criminalised the child. Some policemen have been known to say, “I am not changing my mind”. At that time, people in uniform were respected and believed. We had to confront those cases. I urge noble Lords to think very carefully about providing that power in the classroom. Children are there to be nurtured, loved and taught what is right and wrong.

It is a difficult situation because we have taken away from parents powers to discipline their children. I was told that I was a Victorian when I said, “My child does not do this or will not be allowed to do the other”. That was the attitude of most Caribbean parents. Children were children. We are turning them into fodder for the criminal courts. I ask the Minister to look very hard at this measure and take it away if he can. I have seen no empirical data that suggests that searching a child in the classroom will in some way prevent damage to other children—although it may prevent criminal damage to the building. I ask you to think about the child.

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My Lords, I had not intended to intervene, but I am inclined to think that this is yet another area that will require a longer time to work out the right solution. All of us are aware of the reactions of children—not necessarily young children but those who have been abused at some stage in their lives. We know, sadly, that that has happened in a number of homes, quite apart from outside when children have been abused. There are new methods of abuse, including cyber access and so on. Such activity is, alas, spreading.

However, I am worried about totally removing the passages from the Bill. What the noble Lord, Lord Sutherland, said needs a little more thought. I also want to listen to what the Minister will say in reply before I come to any full conclusion on this. The very best way in which schools operate is when everyone co-operates and trusts one another. We have a head teacher opposite. However, there are situations where that co-operation does not happen, and there can be situations in which children are in danger through lack of action. I am going to wait.

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Before the Minister responds, I wanted to make a quick comment in response to the noble Lord, Lord Sutherland, who raised the crisis issue. That underlines our argument, which echoes what the noble Baroness, Lady Howe, said, that surely what we need to do is to review how the existing legislation has been working so far. It has been in existence for 15 years. If there were going to be crises, they would have happened by now and we should know about them. We should therefore know what extra legislation, if anything, is needed to deal with it. I can genuinely say that there does not appear to be a chorus of demand from the teaching professions saying, “We were in this awful crisis and we were constrained from what we could do by your really unhelpful legislation”. There does not appear to be that demand, but maybe it is out there. Maybe we should do what the noble Baroness, Lady Howe, is saying and find out what is happening on the ground, but without rushing into the new proposed legislation, which opens us up to other problems and repercussions, which we have not yet fully identified.

I wanted to make the quick point that we should review first and see whether there are those crises out there.

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The noble Baroness, Lady Jones, has stimulated me to emphasise the questions that I would like my noble friend the Minister to answer. I was saving them for my withdrawal speech, but it might be helpful to my noble friend if I emphasised them now. I really would like to know what sort of crisis we are talking about, because nobody has yet described to me the sort of crisis that would make it impossible for a teacher to send a child to fetch a senior member of staff or a member of staff of the correct gender.

Furthermore, what evidence is there that it is necessary to allow searches of a pupil alone, by a teacher of any gender? Like the noble Baroness, Lady Jones, I have not heard an outcry from the teaching profession telling us that the checks and balances in the current legislation need to be withdrawn to allow them the freedom to deal with the situations that they are being faced with. I am hearing it from some head teachers, though not all, but I am certainly not hearing it from teachers themselves. As I said at Second Reading, there is this disparity of opinion within the profession itself, which makes it very difficult for us as legislators and non-teachers—most of us are non-teachers—to legislate on what is right. Perhaps my noble friend can give us some evidence of the need to remove these checks and balances and a clear description of the sort of crises that we are talking about. Are we talking about a child with a grenade in his pocket and his finger on the pin? That I would describe as a crisis—but I have never heard of it occurring. But a child with a knife or a gun in his pocket and not with his hand on it and not wielding it is a situation that would allow you to send for somebody else. If a child has it in his hand, it is on view and you do not need to search for it. You have a common law right to remove it. But if you have to search for it, you have time.

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My Lords, the question of evidence is close to my heart, having chaired the Science and Technology Select Committee. I absolutely agree that we should achieve an evidence-based policy. Seldom do we do so, but we ought to.

My question is simply this. If there is no evidence that this is needed, is there evidence that training is needed, in the many other provisions of the Bill? We are all very strong on the importance of training. I am just concerned about having blanket legislation that could rule out the unforeseeable—and I think we have accepted that just occasionally some teachers have experienced that.

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In response to the noble Baroness’s remarks, I gave the example of a head teacher of an EBD school, who described a school trip to the seaside when the boy picked up a piece of glass. The teacher thought, “This boy is rather dangerous and it is dangerous for him to have that glass in his pocket—the best thing to do is to quickly check his pocket and get rid of it”. That may be an exceptional circumstance, but I can imagine that in working with those particular groups that might be when those exceptional circumstances came into play.

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My Lords, I thought that this would be a good and interesting debate and so it has proved. The key issue was raised by the noble Lord, Lord Sutherland of Houndwood; namely, whether legislation should in every respect preclude the possibility of some situation that none of us sitting here can necessarily envisage, although the noble Earl, Lord Listowel, raised one such possibility, or whether we should take the view in approaching legislation that, if we are going to be serious in what we say about trusting professionals, we should provide them with a bit of space to exercise their professional judgment and give them support in doing so. That seems to me to be the argument of principle that lies behind, and has already emerged in, our discussion. The decision that we ultimately reach on these provisions will hinge on it. Are we prepared to allow that small bit of space in emergency situations, or do we take the view that we would prefer to close down that possibility by legislating?

I accept the points made from the outset by my noble friend Lady Walmsley and by a number of other noble Lords. Opposite-sex searches are extremely sensitive—more so at secondary school than at primary school. We have discussed previously the practical issue arising in primary schools from the fact that there are no male teachers in 25 per cent of them. That may have been the relevant age in the instance to which the noble Earl referred. I recognise the sensitivity of searching without a witness. Given that I do so not being a teacher or being in these difficult circumstances, I believe that every teacher or head will understand the sensitivity of the matter even more sharply, because they will know that the consequences to them, professionally and personally, of making the wrong judgment would be disastrous. As a head teacher put it to me the other day, “Any teacher will be very careful about putting themselves in harm’s way”. That is an extremely important point for us to remember. It links to the concerns that the noble Baroness, Lady Jones of Whitchurch, quite rightly raised about putting teachers in danger by giving them such powers.

As we have already discussed previously, these are permissive powers. Under provisions relating to searching powers, head teachers may not require anyone other than school security staff to undertake the search—that will not change—so teachers can draw on this should they feel it necessary for them to do so. There would be very few instances where this situation would ever arise, and, even if it did, an individual teacher may say, “No, thank you. That’s not for me”, and exercise their professional judgment.

I know that I shall have a hard job persuading some noble Lords, but I will attempt to set out why the discretion granted to school and college staff in Clauses 2 and 3 to use their professional judgment, combined with the safeguards which we have included in both, is a sensible way forward.

A number of safeguards already apply to all aspects of the powers to search in Section 550ZA of the Education Act 1996 and Section 85AA of the Further and Higher Education Act 1992. I shall not go through them again, but they are in place. There are additional safeguards, which my noble friend Lady Walmsley referred to, for the new powers. Searches would be permissible only where there was a risk that serious harm might be caused to the person if the search was not conducted as a matter of urgency and if, in the time available, it was not practicable for the search to be carried out by a person of the same sex or in the presence of another member of staff.

The noble Baroness, Lady Massey, raised the point about a parent. The response given by the noble Lord, Lord Sutherland, is the one that I, too, would give: that is, if it is an emergency situation, trying to get a parent there—although, all other things being equal, it would be rather nice—would not be relevant here. However, I understand the thought that lies behind it.

Given that this is an emergency provision and, by their nature, emergencies can arise at any point, and while I hope that schools and colleges will have little cause to use this power, it is important that they should have the flexibility to act in the interests of students and staff where their safety is threatened in the kind of case that the noble Earl, Lord Listowel, mentioned. We expect that the vast majority of searches in future will still be conducted by a member of the same sex and will still be witnessed by another member of staff, as my noble friend Lord Lucas argued. The extension of the provisions is simply intended to give staff the power to act in the interests of the safety of all in emergencies.

In terms of who supports this extension, I take my noble friend’s point that it is clear that some teachers and heads do not want it, but it does have the support of the Association of Colleges, the Sixth Form Colleges’ Forum and the Independent Schools Council. Our broad approach on search has support from the Association of School and College Leaders.

I recognise that there are concerns and that this is not a simple and straightforward case, as the noble Lord, Lord Sutherland, reminded us. We have listened to what the JCHR said. In wanting to help buttress the position of teachers who find themselves in difficult situations and to help protect other children, I recognise that a balance needs to be struck. I think that the Government should take those concerns on board and include in their guidance the specific points raised by the JCHR; namely the expectation that powers to search pupils of the opposite sex or carry out a search without a witness are likely to be used only on rare occasions. Also, the expectation of privacy should increase with the age of the pupil. That point was made by the JCHR and is a matter of sheer common sense. That is the right thing to do and I am happy to give that commitment today.

I know that we will want to discuss these issues further, but as I suggested on Tuesday, the department's expert adviser on behaviour is organising a meeting for noble Lords when I hope we will have a chance to go through some of these issues. I think that the invitation is on its way today and that the date is fixed for next week. I hope that he will be able to share his experiences and that noble Lords will be able to raise their concerns with him.

I hope that the safeguards in the legislation and the fact that we will address in the guidance points raised by the JCHR will, to some extent, reassure noble Lords and that my noble friend may, for now, feel able to withdraw her amendment.

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I thank the Minister for his reply and all noble Lords who have taken part in the debate. I will pick up a few points. The noble Lord, Lord Sutherland, suggested that if I had my way there would be no need for training, but I point out to him gently that the current situation requires training. There are currently pretty wide powers for teachers to search pupils for quite a wide range of objects.

The noble Earl, Lord Listowel, raised the scenario of the young child with a piece of glass in his pocket on a school trip. My noble friend Lord Storey may be able to correct me, but on the vast majority of school trips, there is more than one member of staff because the dreaded health and safety rules and the risk assessments that schools have to do these days would ensure that there are at least two members of staff. I do not think that the situation of having to act alone would arise in that scenario.

The Minister mentioned that he did not want us to close down possibilities. But possibilities are closed down by sensible checks and balances under current legislation. He said that these are permissive powers. But I am afraid that when you give people permission to do something, at some time some idiot will go and do it in ridiculous circumstances. Yes of course I accept that 99.999 per cent of teachers would be sensible, but I do not want to open up the possibility by repealing some of our current sensible checks and balances for that 0.001 per cent of teachers to do something silly. The Minister talked about the safeguards that appear in Section 550ZA of some Act of Parliament or other. I ask him whether teachers know about that; I certainly do not. It is important that teachers are very clear about what they can and cannot do, which they will not be if we leave it to those obscure little bits of legislation.

I finish by asking the Minister: have any injuries occurred to any child because a teacher had to send for a witness or a member of staff of another gender? If that situation has not arisen, we should not make these changes to the current legislation. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendments 17 to 26 not moved.

Clause 2 agreed.

Clause 3 : Power of members of staff at further education institutions to search students

Amendments 27 to 32 not moved.

Clause 3 agreed.

Clause 4 : Exclusion of pupils from schools in England: review

Amendment 33

Moved by

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33: Clause 4, page 8, line 18, at end insert—

“( ) The measures relating to the exclusion of pupils in England in this section are to be exercised in accordance with the duty in section (Co-operation with local authorities to promote well-being) of the Education Act 2011.”

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My Lords, in moving Amendment 33 I shall speak also to Amendment 100. Looking around the Room and seeing the vast experience that is seated here, I realise that the link between Amendments 33 and 100 may be slightly unusual. Therefore, I begin by offering the Committee an apology and the feeble excuse that I have been waiting for some time for a minor operation on a troublesome tooth. Those who are more experienced than me calculated that the day when Amendment 100 would come before the Committee would be the very day that the surgeon was wielding the knife. Therefore, I am extremely grateful to those who have helped me and been so understanding, particularly the House authorities, who have been very helpful. I am grateful for the support of the noble Baronesses, Lady Walmsley and Lady Whitaker, and the noble Lord, Lord Low, who is unfortunately out of the country today.

I also thank the Minister, who wrote to me on this topic. The Committee will not be surprised to hear that his letter was characteristically thoughtful. I appreciated it greatly. However, I regret to say that I did not find it altogether persuasive. That is because Clauses 4, 30 and 31 strike at the very heart of the proper development of children and the responsibilities that we all have, particularly the education services. The Committee will have noticed that the Bill removes the duties placed on the education services by the Children Act 2004 to co-operate with local authorities in promoting the well-being of children and young people in their area. These clauses could not be more comprehensive in their intention. They specify that they extend to schools, governing bodies, proprietors and FE institutions; they are indeed comprehensive. They make clear that, in future, these bodies will no longer even have to have regard or contribute to local plans for the well-being of children and young people.

In every inquiry that has followed a tragedy to a child with which I am familiar, two key messages have permeated every report like the lettering through a stick of rock. The first is that in future each service, including education, must greatly fulfil its particular responsibilities to promote the safety and well-being of each child. The second is that each service must develop the skills to work successfully across organisational boundaries and share information at an early stage. If any noble Lord, but particularly the Minister, can recall a report that does not repeat those lessons, I would be extremely glad to hear of it.

However, this is not just about reports. In every serious case review with which I am familiar—and there are getting on for 100 a year—these same messages are repeated to the point of tedium. Indeed, I recall a seminar in which a senior police officer said with some feeling, “Every time I have sat down to review what has happened to a child, the pattern has always been the same; as each service begins to put what it knew about the child and the family on the table, the meeting became quieter and quieter until someone said, ‘Well, if only we’d known that we would have acted much earlier’”—but of course in those situations it is generally too late for the child.

This is more than about keeping a child safe. We need to place child safety in the wider context of our and the education services’ responsibility to have the wider vision of promoting the proper development of every child. I hope the Minister will take the time to read again some recently published national reports on matters such as childhood obesity, children acting as carers, sibling care, teenage pregnancy, online grooming, drug and alcohol abuse, children with disabilities and those with special needs—to mention just a few. The unbroken thread through each of these reports is this: all these children are of the age to be in the education services, which have a responsibility for each and every child.

Only last week Mr Lansley, the Secretary of State for Health, went out of his way to make it absolutely clear that in the new arrangements that are being proposed for the National Health Service, the specific responsibilities placed on the health services—not just to safeguard children but, as he put it, to promote their welfare—will continue. In fact, if Amendment100 is acted on, the education services will be the only key services to be excluded from these activities. What is more, it just so happens that the education services are the only services that are universal to every child.

Earlier this week Mr Maude talked about teachers’ strikes, and he went out of his way to say that schools not only teach but carry out important wider childcare functions. The Minister in our House did a brilliant job, if I may say so, answering a Question on Monday. Perhaps I may read out his answer rather than my own text. Only yesterday in our consideration in this House of the Police Reform and Social Responsibility Bill, the Government introduced amendments to promote the police’s responsibilities with regard to the well-being of children.

The development of children’s plans and children’s trusts under the Children Act 2004 were designed specifically to place the well-being and the promotion of care of children in this wider context. In the letter which the Minister sent to me, he said that the Bill simply reverts to the earlier position. I urge the Government not to do that and to accept that exhortation and hope have proved to be inadequate ways of ensuring that all the key agencies, but particularly the education services, fulfil their unique responsibilities.

If we remove the duties placed upon the education services, as the Bill promotes, it will give not only a huge message to the education services but a negative message to all the other services that have to play a key role in all this. I know, because of my experience with Members of this House, that this House has a great concern for the well-being of children in general. I very much hope that if the Minister cannot agree to the amendments, he will at least be willing to meet some of us to discuss this so that we can consider the matter more roundly. I beg to move.

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By adding my name to the amendment in this group, which was moved and spoken to with such authority and experience by the noble Lord, Lord Laming, I want to draw attention to a particular group of children where the role of local authorities and others in areas conducive to education—family issues, justice, mobile families—knowledge of the social services is crucial. If there are problems here, children may be disrupted and may drop out of school. Gypsy and Traveller children are particularly vulnerable to the combinations of circumstances that lead them to drop out. Their drop-out rate is far higher than any other group—very, very much higher. School alone cannot easily know all the factors behind this.

So if you want to give these children a better chance, a fair chance, and a chance that is comparable with that of other children, schools need to co-operate with local authorities over well-being. It must be done without exception and it must be a statutory obligation. Of course, it applies particularly in the harshest measure—exclusion.

The Minister referred in his closing speech at Second Reading to local authority children’s services. He said that they had,

“a critical role in the early years”.—[Official Report, 14/6/11; col. 773.]

Why stop at the early years? The need is just as great in later years. The Government’s White Paper on teaching says that local authorities have a role as “champions” of vulnerable pupils. Local authorities cannot exercise this role if schools choose not to co-operate with them. I support the amendments.

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My Lords, I am happy to find myself in my more natural position of supporting amendments rather than throwing four anchors astern. I pay tribute to the eloquence and passion of my noble friend Lord Laming and the experience on which that has been built. At Second Reading, I asked a specific question, which was that if there was a possibility of permanent exclusion—and it is included twice in the relevant clause in this legislation—there had to be a plan B. If any pupil is permanently excluded, there is a major problem that we cannot afford to put out into the wilderness without knowing the direction of travel that society ought to, and will want to, take.

The noble Lord, Lord Laming, has given us one possible solution to this—and I should like to think further about the details of Amendment 100—but there must be a solution, a plan B, and we need to know. If someone is permanently excluded, not simply from school but, as mentioned in Clause 2, from a pupil referral unit, we have a problem. What is plan B?

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My Lords, you will see from the Marshalled List that I added my name to that of the noble Lord, Lord Laming, in his intention to oppose the Questions that Clauses 30 and 31 stand part of the Bill. Amendment 100 replaces Clause 30. It may be appropriate if I comment now.

It was, I think, the Children Act 2004 that imposed a duty on the local authority and a number of relevant partners to work together to improve,

“the well-being of children in the authority’s area”

and reduce inequalities. Initially, schools were not included in the list of relevant partners, and I seem to recall my noble friend Lady Sharp and I protesting loudly about that. Perhaps we were influential in getting schools added to the list at a later date. Therefore, it will come as no surprise to your Lordships to hear that I am very unhappy about the proposal to take them out again. Schools are the only service that all children access at some time or another and therefore they are in a better position than most to affect children’s well-being and equality.

I am not one who believes that the job of legislation is to send out a message but I do believe that, if you repeal a piece of legislation, that sends out a message whether you like it or not. We should remember the outcry when the department ditched the phrase “every child matters”. Everyone suddenly believed that every child did not matter to the coalition Government, which I know for a fact to be quite untrue. Therefore, what will be the message that goes out if we repeal the duty on schools to co-operate with local authorities? Some will believe that they do not have to do it any more and that would be a disaster, particularly for children who need joined-up services. Joined-up services are exactly what the recent Green Paper on SEN is trying to achieve. It is what all vulnerable children and their families want. Children’s trusts, being unaccountable, may not be the best organisations in whose hands to put the children’s plan, but it is essential that there is one and that schools are involved.

There are many special groups with needs that must wrap around the child and not stand alone, and the noble Baroness, Lady Whitaker, has just spoken about a very important one. Another group is young carers and I shall use it as my example. The Princess Royal Trust for Carers has concerns that, by withdrawing the duty on schools to co-operate with local authorities and the duty to have regard to children and young people’s plans, the Bill makes it increasingly difficult for local authorities to deliver against their responsibilities towards vulnerable groups of children such as carers. Services work best for young carers where local authorities retain a strategic role, where they have an overview of all services, including education, and where services and professionals join together around the needs of the young carer and his family. The Carers Strategy 2010 highlights the coalition Government’s commitment to improving support for carers. It advocates a whole-family approach, with services in health, education and social care working together to address the needs when it comes to providing the most effective support. It is also committed to embedding Working Together to Support Young Carers, a model memorandum of understanding between directors for children’s and adult services and health, social care and education. Removing the duty on schools to co-operate with local authorities—that is, with all services that matter working together—therefore runs opposite to the Government’s policy on supporting young carers.

We are not just talking about a few children. The 2001 census data show that there are 175,000 young carers aged from five to 18 in the UK, and I do not know how many more there are according to the most recent census. One-fifth are caring for more than 20 hours a week, and 13,000 young carers are caring for more than 50 hours a week. Twenty-seven per cent of young carers of secondary school age are experiencing educational difficulties. Where children are caring for a relative with drug or alcohol problems, the incidence of missed school and educational difficulties rises to 40 per cent. As young carers get older, so their caring roles often increase, and it gets more difficult for them to participate fully in education, as well as to take part in leisure and social opportunities. For them, time off is a thing unknown in many cases.

Therefore, young carers are a good example but there are others, as we have heard from the noble Baroness, Lady Whitaker. Most schools will carry out this duty anyway but it is those that will not do it unless they have a duty to do so that worry me. I think that we need this duty and it should stay on the statute book.

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My Lords, I shall speak briefly, having not yet spoken at all on the Bill for a number of reasons. I support my noble friend in this matter. I particularly want to make the point that education does not exist in a vacuum and that education without an understanding of welfare—I have said this on a number of occasions—does not address the issues concerning children who will not learn unless those welfare considerations are addressed. I have asked on a number of occasions why this clause on co-operation is going to be taken out of the Bill. The answer that I have heard is that it is bureaucratic. Well, if it is bureaucratic, it is the kind of bureaucracy that I like. I have always felt that bureaucracy is not always a bad thing; some of it is really quite useful in terms of enhancing services.

I speak as a practitioner in a number of areas, as an ex-director of social services and as someone who has been involved in three child abuse inquiries. I set up ChildLine and have worked with children directly and continue to do so. I know that partnership and co-operation are necessary in all those circumstances if you are going to make sure that a child is not being educated in a vacuum.

Most children have some sort of difficulty. If we think about our own education and our own backgrounds, we will all identify some point of difficulty when we have needed help. It may not have involved co-operation with social services in the statutory sense, but that kind of understanding and partnership are crucial. However, they are not universal at the moment. I agree with the noble Baroness, Lady Walmsley, who I am delighted to sit and listen to again as an advocate for children, that we should not send out the message that it does not matter. At a time of extreme pressure and shortage of resources, it would then be very easy not to take the action that was really needed. There are some local authorities—there are people in this Room associated with them—where I know that it will happen; I am not concerned about those local authorities and education departments. I am concerned about where it does not happen.

Co-operation has great value the other way round. Local authority social services departments can learn a great deal from education colleagues about what is happening to children. Teachers often know more from their day-to-day work than a social worker who sees the child now and again—I declare an interest as an ex-social worker of more years than I am prepared to admit to. Unless co-operation is written into the statute, which then frames it, some of that information will not come forward.

The noble Lord, Lord Laming, was most eloquent on this matter, because he has been involved in many cases. I, too, have read most of the large cases; at present, I have to read serious case reviews as the chair of the children and families court service. I see time and again that the key issues are the exchange of information, co-operation, and people understanding about partnership. For these reasons, it would be disastrous if we were to remove the clause on co-operation. It is such a small thing for the Government to do in relation to what the benefit will be for children.

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My Lords, I strongly support the amendment. I have in mind, unsurprisingly, children with special needs who, as we know, are very much more likely to be excluded permanently from school than any other group of children. Ever since the 1970s, people have tried to encourage co-operation between education and social services in particular, but the medical profession as well. As the noble Baroness, Lady Walmsley, said, it sends out a bad message to remove the duty. I do not usually like to think of laws being made to send out messages, but this carries the message that it is unnecessary to have a plan B which is understood by all the people who are deeply involved with the child. The amendments are therefore necessary for the well-being of the child. I met the other day the headmistress of a school—she was obviously the very good headmistress of an academy—who said that she never intended to use the local authority supplies because she did not trust them and it was bureaucratic. I was absolutely appalled by this because it simply deprives the local authority of the ability to keep an overview of all the needs of the child, which is of the greatest importance. I therefore hope that the Government will be able to think again.

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My Lords, I support the amendments in the names of the noble Lord, Lord Laming, and my noble friend Lady Whitaker. Several noble Lords touched on this question at Second Reading. I was particularly concerned to hear that there are 88,000 autistic school-age children in England. We should ask ourselves: who among us, if we had a child with special educational needs, would not want the co-operation of every agency and organisation to deliver the best we can for that child?

On Monday I was at the launch of a document, We’ve Got Great Expectations, produced by the National Autistic Society. Maria Miller, the DWP Minister, spoke at that event. She said that joined-up support from health, education and social services was needed. If it is needed, why are the Government removing this essential element—the requirement to co-operate? The cartoons on the front of the document have captions such as, “Support my child to succeed”, “Let’s work together”, “Help me, don’t doubt me”, and, as some of the parents I met said, “I can’t fight any more”. We all know of cases where parents have struggled to get the system to respond. Before I was elected to the other place, I was a councillor for 20 years. Time and again I went into council offices with a problem, only to be told, “Sorry, councillor, he falls through the net”. Who created the net? We did. Let us not make a bad net by damaging a very sensible policy and the duty to co-operate.

At Second Reading, I asked the Minister what evidence the Government have that the duty to co-operate does not work effectively. I appreciate, as will anyone who has been a Minister, that it is not always possible to answer every point. However, I did not get an answer on that occasion, so I tabled a Question the following day, which the Minister has kindly answered today. I asked what assessment the Government,

“have made of the effectiveness of the duty to co-operate in so far as education is concerned”.

The Minister’s reply, drafted by his officials, was:

“The findings of the Audit Commission’s report Are We There Yet? showed that before the duty to co-operate was extended, schools and colleges in most areas were engaging voluntarily as partners in local co-operation arrangements”.—[Official Report, 29/6/11; cols. WA 430-31.]

That report was published in 2008. I might be the son of a miner but I had to mine that report just to find any reference to co-operation. The only relevant sentence that I found—perhaps the Minister’s officials have found others—says:

“In most areas collaborative working has improved, but the new arrangements have yet to settle down”.

Is that the basis on which the Government will make this decision? In his Written Answer, the Minister went on to say:

“We are not convinced that the addition of schools and colleges to the list of statutory relevant partners, under Section 10 of the Children Act 2004, was … effective or appropriate”.—[Official Report, 29/6/11; col. WA 431.]

If it was not effective or appropriate, what do the Government think ought to be in its place to make it effective and appropriate? I asked a further Question about,

“what impact the removal of the ‘duty to co-operate’ will have on children with complex needs, such as autism, and their families”.— [Official Report, 27/6/11; col. WA 358.]

I have received a two-paragraph reply. I am a great admirer of the Minister and do not wish to be ungenerous to him, but that reply could have been two words: “no idea”.

The duty to co-operate under the Children Act has existed for only a year. It ought to be properly evaluated to see whether there are failures or good points. What key government policy is this duty to co-operate thwarting? What great thing over the horizon can the Government not do because the duty to co-operate exists? How many complaints have the Government received from organisations involved in the duty to co-operate, saying that it is so burdensome that they cannot fulfil it? This is a case on which the Government ought to think again. The strength of this House is that we can try to persuade Governments to think again if we feel that there is a failure.

I conclusion, I share with noble Lords some advice that my late mother gave me many years ago: “My son, in life you will find that sense is not common”. Common sense tells us that this duty to co-operate should remain. I hope the Government will be persuaded of that.

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My Lords, I should like briefly to say how much I endorse the amendment proposed by the noble Lord, Lord Laming, and the noble Baroness, Lady Whitaker. My noble friend Lady Walmsley mentioned that we have spent some time congratulating the Government on introducing this provision and on making sure that schools were included in it. We are very sorry to see that the coalition is now going back on this particular duty.

I speak with a particular interest, as I am currently chairing a commission on colleges in their community. Further education colleges are mentioned here. One thing is becoming apparent from this; the commission is to develop the role that colleges can and do play within their communities. It is clear that the best of our colleges have enormous breadth of partnerships with all kinds of community organisations, which are currently promoting the well-being and development of those communities. They have in some senses a regeneration function, but they also have a function of promoting the well-being of the local community.

The Explanatory Notes say that these duties are being dropped so that these bodies will be able to decide for themselves how to engage in arrangements to improve well-being. I very much echo the words of the noble Baroness, Lady Howarth, in that we are not worried about those that link up naturally. The ones we are really worried about are those that do not bother to do it. Forming these partnerships and links is so important. Having it in statute here provides that extra push or reinforcement for what we want to see. It will be very sad indeed if we drop this duty.

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My Lords, I welcome this opportunity to make comments on the amendment proposed by the noble Lord, Lord Laming. I declare an interest as the chair of the Children and Young People Board of the Local Government Association. The Local Government Group very much supports the Government’s attempts to reduce bureaucracy that schools face. Our report, Local Freedom or Central Control, was launched last year. For that report we commissioned research that showed that in the past 10 years more than 1,000 pieces of legislation have been passed affecting schools. That means that there is a new piece of primary or secondary legislation every school day over that period. However, we do not necessarily see as excessive the burden on schools of co-operating with the local authority through children’s trusts. We do not believe that you can necessarily legislate for good partnership working, but many councils have found that the requirement on schools to co-operate with the children’s trusts is a helpful way in which to encourage them to participate.

In many cases, the removal of a statutory duty will not immediately lead schools to refuse to work in partnership with local councils. Good schools will want to continue with good partnerships with councils. However, we worry, when all the messages coming out of the department seem to encourage schools to become academies free from local authority control and become more autonomous, that the removal of this duty will provide the wrong signal about the importance of local partnership working to achieve the very best outcomes for local children, young people and their families.

I believe that safeguarding is a particular issue here. We think it is important that schools should continue to be given a very strong message that they must co-operate in local safeguarding arrangements, including the local safeguarding children boards.

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Two subjects have been raised in this debate that tempt me to my feet. The first is children excluded from school when the provider of education is not the local authority and the child does not actually receive education because the provision is not there or is not working or the child has escaped from the system. The child is not merely at risk but is predisposed to suffer, because the child who is likely to get into trouble is the child who is likely to get excluded.

When I was working to try and keep children out of crime, rather more effectively than I am now, it was clear that one way of intervening at an earlier stage than normal was to go round to schools and say, “Tell us confidentially who do you expect next to be on the list, on skid row, and into permanent exclusion? Let us provide an adult mentor”. Usually one found that the child had no male role models, as would be normal. The difficulty was actually finding them. That was effective intervention, but that also bears out my feeling that a lot of children are at risk, without anyone realising it, who need not be.

I have no informed view on the mechanism that the noble Lord, Lord Laming, proposes to address this issue or to maintain pressure on it, because I do not have the knowledge. However, I assure your Lordships of the importance and size of that problem, and the much more distressing problem that came to my notice in the 1970s in the case of Maria Colwell. That was the first case to my knowledge where there had been a hideously unnecessary death of a child because of lack of information about her—poor thing—running home during the day in a nightdress and nothing else, and no one doing anything about it. She finished up dead. The only way to make sure that communications exist is to have a network within which they can exist. I am not advising the Minister of what he should do about the amendment or how that network should be not merely preserved but made perfect; I am saying that it is a compassionate duty on society to see that this endless repetition of the same syndrome, with desperately sad stories taking place as a result, is addressed. If this amendment is an opportunity to address it, let us seize it with both hands.

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My Lords, perhaps I may ask a rather boring lawyer’s question about the amendment. I think I am right in saying that in Committee it is possible for the mover of an amendment to say something a second time. I am totally persuaded of the desirability of co-operation, and one has a wonderful example in the amendment of the wealth and depth of experience of Members of your Lordships’ House. If they combine together, as they have done, it is like a mighty rolling wave, and I do not envy the Minister having to answer it. However, I have a hoary question on which perhaps the noble Lord, Lord Laming, might help me. His Amendment 100 places on all providers of education,

“a duty to co-operate with local authorities”,

and goes on to say,

“to promote the well-being of children and young people”.

In the case of a school, is that duty confined to the children and young people in that school, or is it more general? On the face of it, it looks to be more general.

My second boring old question that the Minister might like to answer is: have there been any cases under the existing law—I see that he is proposing to change the 2004 Act—where a school has been sued or taken to task judicially for a failure to co-operate? If there is no such case and the duty is not justiciable, some of us in this Room might be disappointed.

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My Lords, again, I shall be brief. I have absolutely no hesitation in supporting both amendments and congratulating my noble friend Lord Laming and the noble Baroness, Lady Whitaker, on the way they have presented the case. One is particularly thinking above everyone else of those with special needs, not least of the age of 19 or 21—whatever the ages are—up to which care is quite rightly to be continued and provision made. It takes me back to my 20-odd years as a chairman of a juvenile court in London. At that time, there was a darn sight more co-operation. All of us—the social workers, probation officers, midwives and magistrates—were trying to find the right solution for the problems that ended up in the courts, and many of them were to do with a lack of schooling. Children were not going to school but the reason for that was not followed up. All that ended with the Children and Young Persons Act 1969. It was a case of, “Magistrates, you make the decision and we the professionals will deal with it”. That would have been okay if it had really proved to be the answer but—this is why I come back to the point—we need co-operation. Returning to the phrase used by my noble friend Lord Laming, “If only we’d known that at the time”, so much more could have been done.

This issue also takes us straight back to the principles underlying this coalition Government. I refer to the form of localism in which everyone co-operates to do their best, particularly for the least able within our community. I therefore congratulate noble Lords and ask that this duty be reinstated.

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My Lords, I am not sure that I shall be able to add too much that is new to the debate, but this is an important issue and I am hoping that weight of numbers will affect the way that the Government respond to it. There will be a bit of repetition on my part but perhaps also one or two new points.

I genuinely think that this is one of the most important debates that we have had so far on the Bill. I have a feeling that, if this measure goes ahead, the tide will be turned back and it will be very difficult to reclaim the progress that has been made. The subject was excellently introduced by the noble Lord, Lord Laming, and no one is more experienced than him in understanding co-operation. In some ways, the education service has been on a long journey in getting to this point, having put into law a duty of co-operation. I wonder how far the Minister and his department have reflected on that journey. If he had done so, I do not think that he would have come to the conclusion that he has. First, there is a litany of children’s cases where, if only we had known the background, we could have made a difference.

Going back in time, it was clear that the education system did not need to co-operate with everything else. Children were born into and brought up in communities where there was natural communication. There were no social workers, health workers or even classroom assistants and so on; the people in the community looked after the needs of the children. Back then, children very often flourished because their lives were not separated into the needs of many professionals. However, we do not live like that any more. The education and school service is a specialised service in many ways, and long may that be the case because it performs at a far higher level. To be honest, I think that we have spent the past 30 years trying to remake connections that used to be there naturally, and that has been a real problem for schools. They are being asked to focus on education. I look back to the early days of the previous Government, when schools were under a lot of pressure not to act as social workers or counsellors and not to make excuses but to focus on education, and that was right as well.

Over the past 15 years, we have been on a long journey in which schools have focused on educational standards for everybody. I think that teachers have always known it but government came to realise that you cannot deliver on standards unless you look at the development of the rest of the child. When I started teaching in the 1970s, those of us in the education system were too much like social workers and standards came off the agenda. Then, at the end of the 1990s, we focused only on standards, and children fell through the cracks because their wider well-being was not catered for. This proposed new clause has again found the right connection.

I am not saying that it worked brilliantly in the past but it is a very clear statement in law that our society understands that, for children to achieve and flourish, adults have to talk to each other, because children’s lives are not compartmentalised. It is as simple as that. Sometimes we cannot structure services for children in a way that reflects the people whom they are. It might sound bureaucratic, but I genuinely think that this amendment is an honest chance and an honest wish to reconnect bureaucracies—in the best sense of the word—to meet the lives of children.

Would the Minister ever tolerate or approve of schools not co-operating with local authorities or other organisations? Can it ever be right that a school says, “I am exercising my right not to co-operate with someone else who affects the life of a child whom I teach”? I cannot see that it is. It is obvious that everyone will do things without being told to, but we are not there yet. A Minister in 50 years’ time might be able to say that such co-operation happened naturally and was so much embedded in the way schools worked that we no longer needed to have this in the Bill, but honestly we are not there yet.

The sad thing is that some schools that have the most difficult of times, because they have really challenging children with so many barriers to learning, given half the chance will not comply because they have other things to do. It will not be because they are lazy or do not care or think that is it is unimportant but because, in the words of the Government, it is a burden lifted from their backs. In a way, it is those people who have the most need to co-operate.

There are simple reasons why this is the right thing to do. It is good practice. Secondly, it is not yet embedded good practice. Thirdly, I sense in much that has been said over the past year that teachers need to focus on education and standards. Even if that is the reason, they need to talk to other people and help remove the barriers to children's learning. I very much hope that the Minister will take the opportunity to explain the thinking but then to take time to see whether this problem that he is creating can be avoided.

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I also support the comments made by the noble Lord, Lord Laming. I confess that in the mid to late 1990s, I was chair of education in an authority where we had such an incident before the Act came in and there was a duty to co-operate. I remember at the time the deep shock as a fairly new councillor and certainly as a new Cabinet member at understanding that we had completely failed. The system had failed. I welcomed the Act when it came in.

I also echo the points that the noble Lord and others made—the noble Baroness, Lady Howarth, in particular—about a number of cases that have been reviewed since. I would say to my noble friend Lord Phillips of Sudbury that I do not think you need to take a school to court. All you need to do is look at the serious case reviews where recommendations have been made to schools that have failed to ensure that follow-up happens.

I am sure that the many schools that want to co-operate will continue to do so. The problem is with the small number that do not believe it is in their interests. I am sorry to go back in time, but I remember some grant-maintained schools in the 1990s feeling that it was an absolute liberation to be free of the local authority and doing everything that they could not to co-operate with it. I fear that we might end up with that sort of encouragement again among academies and free schools were we to lose the duty to co-operate now. It is vital that we retain it.

I have one further point that is not about safeguarding in the sense that much of this debate has focused on. In many other areas local authorities, not just upper-tier authorities with responsibility for education and social services but district and borough councils, should have a duty to co-operate for services that children receive across the board. That has to include library resources, playgrounds and provision of school places at a strategic level. Where more schools can do their own thing and there is no longer a need for an admissions forum, a duty to co-operate at the highest strategic level to ensure that there is the right provision for children in an area is absolutely vital.

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My Lords, I want to make a small contribution to this excellent debate and thank the noble Lord, Lord Laming, for his introduction. I am a great admirer of the noble Lord. The Climbié report that he so admirably produced led to a great deal of rethinking on vulnerable children.

Some of the issues that he and others raised are about not being able to educate without looking at the whole child—a point made by the noble Baroness, Lady Howarth, and a few other noble Lords. I also thank my noble friend Lady Morris for her potted history of education, which was very useful.

Before I came to the Committee today, I listened in the Chamber to the first couple of speeches in a debate on female genital mutilation. My noble friend Lady Rendell, whose debate it was, made the point that schools sometimes knew that if a girl went missing or was absent for a while to go back to her own or her parents’ country, it was often for the purpose of female genital mutilation. Noble Lords might think that that is not a good example because there have been no prosecutions for female genital mutilation. However, my point is that schools can spot problems at an early stage. They can spot things such as unexplained absences, physical signs of abuse and drug and alcohol use. Schools have a responsibility to share that safeguarding function with other people. They need to know what to do and who to go to about their concerns over a particular child or children. They need to know who to refer to and how to link to other services.

I remember from when I was a teacher that some of the most valuable discussions I had, long before all this, came from case studies of a particular child or family. We brought in all the agencies, or as many as we could at that stage, who were responsible for that child. Those case studies were time-consuming but often addressed the given child’s situation—why that child could not learn, why that child was absent and what was going on. All the agencies could share that information. The ideal scenario now is that all the agencies we have talked about today should be able to share their experiences of a child and should be encouraged to do so.

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My Lords, childhood lasts a lifetime. Whatever children go through at an early age will stay with them for ever. Children’s well-being should be at the heart of everything we do in society. It should begin at home, but that is not always the case. However, it definitely needs to happen at school. Today, many children face difficulties in their lives. For some, life is like a marathon; it is relentless and the challenges that they face are unbearable. Some even die because of those challenges. The children who are victims and who are vulnerable need schools to support them. Schools have a duty to help them through the traumas that they might be going through by having strategies in place to cement the solid foundation needed to address children and young people’s well-being.

Many schools have such strategies in place and take this responsibility seriously. I visit schools up and down the country to give inspirational talks to children and young people. I often identify children and young people who need support, and discover what they might be going through mentally, physically and emotionally. It is so rewarding to know that you can make a difference to a young person’s life by giving them support and making sure that their well-being is addressed. It is the responsibility of us all to make sure that this happens time and again. We should have joined-up policies to make sure that it does. I fully support the amendments in the names of the noble Lord, Lord Laming, and the noble Baroness, Lady Whitaker. If we can do this, we will do a just service to our children and our young people across the country.

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My Lords, I thank my noble friend Lord Laming for tabling these amendments. I have just one quick question for the Minister, following on from the question of the noble Lord, Lord Touhig, who talked about the impact on children with special educational needs. What does he think the impact might be on children in the care of local authorities? In principle, I can see that outcomes might be improved if there is at least a strategy that involves schools working with local authorities and thinking about how children’s homes and foster carers could be better meshed into the system.

Schools already have various duties with regard to looked-after children, but this might be another means of promoting outcomes for them. I should be grateful to the Minister if he circulated some copies of the plans for children and young people. I suppose it would be fairly easy for me to find those plans in the Library, but I should be interested to see how they work. I recognise the Minister’s drive to reduce bureaucracy, and I wonder whether the legislation is perhaps going a bit too far in trying to right that wrong.

Finally, I share the noble Baroness’s concern about the academies process. There are many positive sides to it, but there is the danger of schools becoming atomised, and the process would seem to add to that risk. I look to the Minister for reassurance in his reply.

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My Lords, I was a little concerned, after listening to our previous debate on searches, when we all became energised and passionately concerned about some of the dramatic situations we were envisaging, that when we came to debate something that sounds as sterile as a duty to co-operate we would not capture what this was about. I am sorry—I need to apologise to noble Lords, because I completely underestimated the ability of colleagues to see the importance of what we are talking about and to get behind the rather dry phrase, “duty to co-operate”.

I care enormously about this issue. It is one of the most significant aspects to the Bill, as my noble friend Lady Morris and others have pointed out. While I am on this subject, I have to say that I had no idea that the intervention of the noble Baronesses, Lady Sharp and Lady Walmsley, in the genesis of this legislation was partly why schools are included. That was before my time as Children’s Minister. I am full of admiration because I know the weight of opinion among civil servants in the Department for Education—with respect to those here—and that they would have resisted this like mad. Therefore, it is a tremendous achievement that the noble Baronesses managed to get it included.

One of the themes in this legislation, which I am sure the Minister will rehearse, is that the Government want to reduce what they regard as burdens and unnecessary duties on schools. We all have some sympathy for the potential for innovation and creativity if we can give professions who are capable of exercising it wisely their head. However, my problem is that the Secretary of State’s view—and I absolve the Minister here from responsibility, because it is the view of the Secretary of State—that it is a good thing if he can take away every single duty and burden as he sees them, and he is not necessarily thinking judiciously about the effect of each and every one. The more he can tear up the better. To be honest with noble Lords, that genuinely causes me great disquiet because reducing requirements and duties and thinking about the impact of what you are doing is one thing. Simply to tear them up without thinking about or understanding the impact properly is quite another. The best interpretation of the Secretary of State’s proposal here is that he does not know what he is doing and does not understand the issues. I am absolutely convinced that if he understood them properly, he would not be proposing to repeal these duties on local authorities. It is incomprehensible to me—if not indefensible—that anyone should propose this if they really understand what they are doing.

The amendments of the noble Lord, Lord Laming, are a way of getting to a stand part debate. I know we will not have that later on, which is why I and others are speaking now. The noble Lord, supported by the noble Lord, Lord Elton, gave us a history of all the inquiries, from Maria Colwell through Victoria Climbié and recently up to Peter Connelly, and their identifying the need for agencies working with children to speak together and to work together. That is a process that we still cannot say is perfect, as other Members have pointed out. It is why the legislation placed an equal duty on all those agencies—it was no greater on one than it was on another. They were the local authority and all the relevant partners, including the health, schools and employment services and the police. There is a mutual lock on all those agencies to talk and work together. To take one of those partners out of the equation, particularly the only partner that has contact with every single child over the age of five, is incomprehensible.

The duty was brought in not only to address some of the failures of the past but, in recognition of the limitations of legislation, to start to change culture and practice. I agree with the noble Baroness, Lady Walmsley, that simply to remove the duty from schools would send a very bad message and cause problems. It would also start to reverse the improvements in culture and practice that we have undoubtedly seen. I know that legislation cannot determine the behaviour of single school or every single authority, but it can create a direction of travel. To repeal the provisions would be to go backwards. There is still a lot further to go.

When I was Children’s Minister leading up to the implementation of the legislation, I saw that it was a matter not just of schools not co-operating. I heard many complaints from schools that had tried to engage children’s social care—they had rung up about a child. They told me, “Do you know what? They said they can come in three weeks’ time. Well, that’s no good to me”. Reciprocity has to be developed between the key agencies. I can see the noble Lord, Lord Storey, smiling, but I can tell him that I got a lot of stick when speaking at local government conferences and directors of children’s services’ conferences, and I became well known for it, for saying, “Come on, now. It’s not just schools; it’s you as well”. To unpick and start to weaken that apparatus by taking out schools would be very dangerous.

Many noble Lords have touched on why that co-operation is still necessary. Children with special educational needs are a very important group requiring multi-agency assessment and intervention. The recently published special educational needs Green Paper, when referring to special educational needs and exclusions—a topic that we will come to shortly—states that a whole-family approach to the assessment of needs and delivery of services is necessary and that,

“we will recommend in … guidance that children are assessed through an effective multi-agency assessment for any underlying causal factors. We will suggest that schools trigger this assessment”.

Here we have a Secretary of State in the Education Bill proposing to repeal the duty on schools to co-operate but envisaging, in addressing the needs of SEN children who might be excluded, that schools trigger the assessment. There seems to be a contradiction in the Government’s thinking.

The assessment is essential not just for children with special educational needs, as noble Lords have mentioned, but for children at risk, for children in care, for those with mental health problems, and for children with parents who are in prison or who are abusing drugs and alcohol. There is a whole range of factors. Indeed, to promote the earlier intervention from the noble Baroness, Lady Howarth, who is very experienced, schools—that universal service—are necessary to identify the problems early, to get those services in to intervene early and perhaps to prevent escalation and further problems down the line.

One response that the Minister might make—his colleague Tim Loughton has referred to this as an alternative—is that schools should be formally represented on the local safeguarding children boards. That may well be a very good thing, but it is not the same as requiring each school to co-operate in the case of individual children. That raises concerns about how far Ministers understand what we are talking about with this proposal. We certainly give our intention to vote against the repeal of these two clauses when we come to Report, but I would be interested in the Minister’s response today.

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My Lords, I think that a pattern is beginning to emerge in this last group. For that reason, I shall keep my remarks fairly short.

I am grateful to the noble Lord, Lord Laming, for the way in which he raised and introduced his amendments. I wish him well with the dentist and hope that the exploration that he is about to undergo will not be as painful as the one that I have just been subjected to—and I hope that they will remember to supply him with some anaesthetic. Maybe I will speak to his dentist.

Before responding to the suggestion with which the noble Lord, Lord Laming, concluded his remarks, I wanted to pick up one point that had been raised about whether removing the duty to co-operate may inadvertently send a signal to schools that the Government do not take children’s well-being seriously. I want to put on record the fact that clearly we do, and we have duties on schools to safeguard and promote the welfare of pupils under Sections 157 and 175 of the Education Act 2002. We have retained the important duties on maintained schools to promote the well-being of pupils, which is in Section 21 of the Education Act 2002. As the noble Baroness, Lady Hughes of Stretford, said, there is a duty on the local authority to take reasonable steps to ensure a diverse range of schools are represented on local safeguarding children boards. Obviously, we have no plan to change any of those duties.

There is a debate one can have about statutory duties as opposed to a voluntary approach and whether statutory duties automatically work better than a voluntary approach. I think what everyone who has spoken this afternoon would agree with is that it is the importance of people working together in partnership working across a range of different fronts that is the key here. There is no disagreement between us that that is something that we want to encourage.

I shall not reply at length, but I clearly recognise—as do all noble Lords—the experience that the noble Lord, Lord Laming, brings to this area, as do many other noble Lords who have spoken. It clearly behoves the Government—me—to listen to what he says with great care. I know from having spoken to him before that he understands our concerns about a one-size-fits-all approach and not trying to treat all schools in all situations in exactly the same way. I know that he understands that, but equally I understand the point that he has made. In essence, I clearly need to consider the points that he has made this afternoon. He kindly offered to come in and speak further; I would very much welcome that. As soon as he is able to speak again, perhaps we can do that, certainly before Report stage. I would invite him to do that if he would.

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My Lords, I am—I was going to say “most grateful” but that is an understatement—slightly overwhelmed. I am so proud of your Lordships’ House. I read the debate on this that took place in what we call “the other place”. Being at my most judicious in choosing my expression, I shall say that it was a touch disappointing compared with what noble Lords have said here today. The debate here has stood out. I am not surprised but hugely impressed, as ever, with the calibre of the people who have contributed to this debate, with the experience that they bring and with the quality of compassion that they share.

We would all like to impress upon the Minister, who responded in a characteristically thoughtful and generous way, that none of us wants to defend duties that are there purely to serve bureaucratic ends. Frankly, too many such duties simply serve bureaucratic ends. I would support the Government if they said that with every duty you had to demonstrate the value that it brought to, in this case, children and young people. We should ask what impact it has. Does it enrich their lives and their life opportunities? If it does not, it is simply serving the machine. Therefore, if the Government wish to remove bureaucratic duties, I assure the Minister that he will have my complete support. There is a huge difference between that and trying to remove these duties, which, as all noble Lords have said, are about co-operation. They are not just about safeguarding but about promoting the welfare and proper development of every child. Today, we have heard many examples of children in different circumstances. However, time is going on, so I shall not mention them.

I am immensely grateful to all noble Lords who have spoken in the debate. I absolutely understand the Minister’s position. I know that by working together—an example that we should set to everyone else—we can do something that will achieve the end that we all wish to see. I shall not delay the Committee further, as I know that noble Lords have a long agenda. I shall follow the good example set by the Minister and just say that, on the basis of the assurances given by the Minister, I beg leave to withdraw the amendment.

Amendment 33 withdrawn.

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My Lords, it has been suggested that we take a comfort break at this stage. Therefore, the Committee stands adjourned until 4.47 pm.

Sitting suspended.

Amendment 34

Moved by

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34: Clause 4, page 8, line 22, at end insert—

“( ) Where a child’s SEN has association to behavioural needs, a school cannot exclude that child without demonstrating the attempts made to support the child’s needs.”

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My Lords, the noble Lord, Lord Rix, has been called away as a result of a family medical situation and has therefore asked me to deliver his speech for him. I shall speak also to Amendment 42 in the noble Lord’s name.

He would first like to thank the Minister for the offer he recently made to meet him with some of his officials to discuss these matters in more detail. The noble Lord says that he is most appreciative of the Minister’s time and for his constructive and helpful approach to the various matters raised.

I intend to focus my comments on the educational attainment of pupils with special educational needs, notably those who are disabled, and particularly those who have a learning disability. For the record, it is appropriate that the noble Lord, Lord Rix, declares an interest to your Lordships through his role as president of the learning disability charity, Mencap.

As your Lordships may be aware, the exclusion of pupils with a learning disability remains disproportionately high compared to non-disabled children. Pupils with SEN—both with and without statements—are more than eight times more likely to be permanently excluded than pupils with no SEN. It is for this reason that he has tabled the amendment and Amendment 42, which aim to ensure that children with SEN are not unfairly excluded as a consequence of either their need for additional support to achieve their full potential, or the failure of a school to recognise and provide for those needs.

The amendment would ensure that where a child’s SEN has an association with behavioural needs, a school cannot exclude a pupil without demonstrating the attempts made to support those needs.

Inadequate identification of a pupil’s needs denies that pupil access to support and the consequence is a poor education. This in turn leads to children becoming frustrated with the lack of appropriate provision, and a misunderstanding by teaching professionals of the subsequent conduct and behaviour of the pupils concerned. However, all this may have been caused by the initial and ongoing failure of the school to identify that pupil’s support needs. In such a climate, what hope is there for the children affected? The tragedy is that once mistakes are made in the early years of a child’s education, they can sometimes lead to a repetition of these failings as they grow older and older. Amendment 34 would go some way to tackling some of the issues to which I have just referred.

This leads to my second amendment in this group, Amendment 42, which provides a trigger for an assessment of a child’s support needs if they are excluded more than once in a 12-month period. I understand that when this issue was raised during the Commons Committee stage of the Bill, Ministers claimed that it would be “too rigid in practice” to implement. Your Lordships will not be surprised to hear that I do not share this view. Indeed, I take a contrary opinion: the prospect of the trigger would lead to more schools taking the right steps early on in an attempt to avoid exclusions occurring in the first place.

I fear Ministers may also overestimate the enthusiasm of some schools and educational professionals for identifying where extra support is required for children who exhibit failing conduct. I also advise a rethink of this position to fall in line with the SEN Green Paper, which states that the Government,

“will recommend in exclusion guidance that children are assessed through an effective multi-agency assessment for any underlying causal factors. We will suggest that schools trigger this assessment in instances in which a pupil displays poor behaviour that does not improve despite effective behaviour management by the school”.

Why can the Education Bill not take note of the Green Paper, rather than wait a further year before accepting this sound advice? I beg to move.

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My Lords, I have enormous sympathy with the amendments that the noble Lord, Lord Rix, would no doubt have moved and spoken to if he had been able to stay. His record on behalf of the vulnerable and the disabled is superb. He has spent all his life doing these things.

The assessments for which he calls in his second amendment raise a question of some difficulty. Most schools in most of the 6,000 cases of permanent exclusion call for some reassessment at that stage. Not all schools do and that record should be improved. However, it is a stage that triggers—at least in the mind, if not in legality—a reassessment under those circumstances. There is a huge problem over that. Most SENCOs, most teachers and many professionals working in this area will tell you that when the assessment is triggered—which does not always happen, as we know—it is not independent. Some local authorities have a fine record in this area but there are some whose record is, frankly, poor. Too many of the professionals I have mentioned believe that because the assessment is made by local-authority-employed educational psychologists, it reflects rather more the funding and provision available in the local authority area than the needs of the child.

The Green Paper, which has already been mentioned, gives us a glimpse of hope on this. We all rather hope that when it becomes a White Paper it will become more definite. It promises that in some trial areas we shall find some real independent assessment of the kind that is necessary here. I hope that that will happen, that we will see many of those trials and that at the end we shall see a new system that will able to assist excluded children in this way.

I suspect that when the noble Lord, Lord Rix, reads Hansard he will find that the Minister has not been able to grant him immediate gratification. Nevertheless, he should be able to give some guarantee that those assessments must become more independent and be conducted by more objective criteria than they are at present.

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My Lords, I support Amendment 35 and Amendments 48 to 52 in my name and that of the noble Lord, Lord Low. Children who have been permanently excluded are less likely to achieve five good GCSE results or to be in employment in later life. There is a long-established link between being excluded from school and being involved in crime. Research from the prisons inspector in 2004 found that 83 per cent of young men in custody had previously been excluded from school. There is a clear consensus that exclusion from school results in dramatically poorer outcomes for the child concerned and has significant long-term costs to society.

Exclusion disproportionately affects disabled children and children with special educational needs, further compounding the disadvantages that they face. The Bill’s equality impact assessment itself recognises that pupils with SEN account for 72 per cent of all exclusions. Disabled children and children with SEN continue to be over eight times more likely to be permanently excluded from school than the rest of the school population, a point made by the noble Baroness, Lady Walmsley, on behalf of the noble Lord, Lord Rix, when she gave us his speech.

Children placed in School Action Plus who have significant needs but who are without the statutory support of a statement for special educational needs are over 20 times more likely to be excluded. The Special Educational Consortium, which provided a brief for today, recognises that the Government are seeking to ensure that children with SEN are not disadvantaged by the new system. However, I share its concern that the Government have not gone far enough to mitigate the potentially negative impact that the proposals would have on children with SEN. The consortium tells me that it is often unmet learning needs, including unmet special educational needs, that are at the root of the persistent behavioural difficulties that these young people become involved in. In Committee in the other place, the Minister for Schools said,

“Incidents which prompt multiple exclusions will often be an indication that a pupil has underlying difficulties that may not have been correctly identified”.

This recognition is most welcome; I think that we would all welcome it. The Minister went on to say that the Government,

“will recommend in exclusion guidance that children are assessed through an effective multi-agency assessment for any underlying causal factors. We will suggest that schools trigger this assessment in instances in which a pupil displays poor behaviour that does not improve despite effective behaviour management by the school”.—[Official Report, Commons, 15/3/11; col. 378.]

On Report in the other place, the Minister said that it was the Government’s intention to ensure that those assessments actually take place.

The Special Educational Consortium rightly has serious concerns that those assessments will not happen if there is only a recommendation and they are not included in the statutory guidance. All my experience, both in the other place as a Back-Bencher and a Minister and, as I said in the earlier debate, as a councillor for 20 years, shows me that that would be the case. Exclusion guidance is already clear about the need to look at underlying causes of behavioural difficulties, yet this has not reduced the number of children with special educational needs who are routinely and regularly excluded from school.

The current guidance is also explicit that schools should exclude children with statements only in the most exceptional circumstances. However, children with statements—in a point made by the noble Baroness, Lady Walmsley—are still eight times more likely to be excluded than their peers. Hence, Amendment 35 would require that:

“Regulations must make provision that if a pupil has been excluded from school for a fixed period on two or more occasions in a 12 month period or is at risk of permanent exclusion then a head teacher shall ensure that—(a) there is an assessment of whether that child has unidentified learning needs (b) there is a review of the effectiveness of the special educational provision being made if that pupil has identified special educational needs; (c) there is a review of the effectiveness of the reasonable adjustments being made if that pupil has disability”.

The purpose of this amendment is to make it a requirement in the regulations to assess children at risk of exclusion. That is necessary because the proposals as they stand would make no difference to the number of children with special educational needs who face exclusion from school. The amendment would ensure that the school has a legal duty to undertake an assessment.

Amendment 48 would make it clear on the face of the Bill that any parent can request an SEN expert, even when the child does not have an identified SEN issue but the parent believes that there may be an underlying factor in the exclusion.

Amendment 49 would provide that parents must be properly informed of,

“their right to request an SEN expert”,

to assess their child.

Amendment 50 would ensure that all SEN experts are suitably qualified and there are consistent standards across the country. That has been a big problem with many of these measures in the past.

Amendment 51 would ensure that the SEN expert is able,

“to review the needs of the child and whether the school puts the correct support in place”,

and Amendment 52 supports the Special Educational Consortium's belief that the final choice of an SEN expert must be left to the parents if they are to have confidence in the system.

These are reasonable and sensible measures and I hope that when the Minister comes to respond he will think that they are a good idea and wonder why the Government did not think of them first.

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My Lords, I support Amendments 34 and 35. I do so having in mind particularly children who are speech defective and suffer from various communication needs where the continual and continuous support by speech therapists and others is vital. There is only a small window of opportunity, to coin a phrase, in which you can address speech pathological problems. All exclusions are a tragedy, but they are an especial tragedy for someone for whom a continuous supply of special education is required as, for example, in speech pathology.

The amendment of the noble Lord, Lord Rix, which was introduced by the noble Baroness, Lady Walmsley, talks about behavioural needs. I hope that it is understood that this goes very much further to the conditions underlying the behavioural needs in question.

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My Lords, I entirely endorse what my noble friend Lord Quirk just said about those with communication difficulties. Like a number of other failings in health and education, I have been alerted to a particular problem by the numbers suffering from it in custody, such as those with the communication difficulties that we have just been hearing about. Some 48 per cent of young offenders suffer from attention deficit hyperactivity disorder, commonly known as ADHD.

I have spoken already about the concentration in this Bill on who should be assessed and the lack of detail on what should be assessed. In the opening amendment, my noble friend Lord Northbourne talked about a child's healthy, social, emotional and cognitive readiness to enter school. The noble Baroness, Lady Perry, questioned the responsibility for preparation being passed to local government. I agreed with that in one particular respect—the word “consistency”. If you delegate responsibilities, they will inevitably be given different priorities, which leads to what are known as postcode lotteries. There must be no postcode lottery in ensuring that our children—all our children—are as ready as possible to enter school, which means that possible preventable problems have been identified and amelioration plans made.

I spoke to Amendment 1 to suggest that every child’s communication skills should be assessed, not just to identify learning disabilities and special educational needs, but also difficulties that do not qualify for either definition. The problem with ADHD is that it is another one that does not qualify for definition either as a learning disability, a disability or a special educational need. It is not mentioned in any of the other amendments in this group although it is hinted at in Amendment 42 about which the noble Lord, Lord Touhig, has just spoken.

ADHD is a common behavioural disorder affecting school-age children. But it is also a clinically distinct neurobiological condition that is caused by an imbalance of chemicals affecting specific parts of the brain responsible for behaviour. If you look at the figures, 3.62 per cent of all boys and 0.85 per cent of all girls aged between five and 15 suffer from ADHD, 90 per cent of whom will underachieve academically at school. Children with ADHD are more than 100 times at greater risk of being excluded than other children and up to two thirds of those who are diagnosed with ADHD will continue to experience symptoms into adulthood.

It is not always generally understood what these symptoms might be, and in looking for them the clearest I could find was in A Parent’s Guide to ADHD in Children published in 1997, which said that:

“Children with ADHD often act without thinking, can be hyperactive, and may have trouble focusing. ADHD can affect all aspects of a person's life, extending far beyond poor behaviour or problems at school. The symptoms can have a significant impact on family life, relationships with friends, school discipline and society as a whole.

In other words, it is not something to be taken lightly or wantonly.

Although the youth crime action plan in 2008 identified ADHD as one of the main risk factors in criminal offending during childhood, ADHD struggles for recognition within the current educational system. The term is not listed in the Special Educational Needs and Disability Act. It is not listed in the Disability Discrimination Act, the SEN Code of Practice, or the Disability Discrimination Act 1995 Code of Practice. It is not mentioned in the 2005 report on improving behaviour by the Practitioners’ Group on School Behaviour and Discipline led by Sir Alan Steer. It is mentioned only in the section entitled removal of pupils on medical grounds in the 2008 government guidance on exclusion, Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units. The only mention under that is pretty bare. It does not include any direction regarding the next steps for school staff to adhere to in order to make correct, informed decisions on exclusion.

ADHD is not mentioned in Support and Aspiration: A New Approach to Special Educational Needs and Disability published in March this year, so does not qualify for education and health and care plans from birth to 25.

A specialist consultant using standard criteria and rating scales can diagnose ADHD in school-age children, but the majority of adolescent psychiatrists and paediatricians believe that it is currently underdiagnosed in the United Kingdom. Sadly, once it is diagnosed there is no quick fix. The condition is manageable with a combination of regimes that include behaviour management, cognitive therapies and medication.

According to NICE, ADHD is associated with significant financial and emotional cost to the healthcare system, education services, families, carers and society as a whole, quite apart from the basic financial cost of £4,000 a year to teach a child in mainstream and £15,000 a year in a pupil referral unit. Carrying on with this problem, two thirds of parents of children with ADHD who had been in contact with teachers found that the perceived competence by teachers in the management of ADHD was at best variable. A very large number of specialists feel that teachers are not aware of ADHD and do not therefore realise what the symptoms are or that people showing those symptoms should be referred to someone as quickly as possible. We come down to the fact that, at present, ADHD is usually identified only after the second exclusion for bad behaviour. The youngest excludee whom I came across in prison was a boy who had been excluded from his playgroup at the age of four and never allowed to attend any form of education thereafter. It was small wonder that I found him Young Offender Institution Dover—and that was down to ADHD.

What should we do? We have already brought out the fact that a large number of ministries are involved in taking action to ensure that every child is ready for school. I have already quoted a number of Ministers who are involved in different aspects of ADHD. I ask the Minister to agree to undertake not only to consider my amendment, which has a specific recommendation about action following a second exclusion and is what is happening now and should be enshrined—but to start thinking seriously about those who are at risk of exclusion as a result of ADHD by raising its profile on the political and healthcare agendas to ensure better futures for children with this condition.

If we were to go on to debate the subject, I would talk about the effects of nutrition, because it has such a huge effect on the brain and is such a powerful contributor to the condition and its treatment. However, this is not the time or the place for that. However, confident in the hope that the Minister will accept my plea and its logic, I am sure that all that can come out in the consideration that will, I hope, follow.

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My Lords, I agree with the noble Lord, Lord Quirk, that any exclusion is a tragedy for that pupil and for the school itself. That is not to say that there are not occasions when pupils have to be excluded. Children have a right to learn and teachers have a right to teach. We must always remember that. However, in my experience—and the noble Lord’s point is important here—children with learning difficulties, and with social, emotional and behavioural difficulties, are more likely to be excluded than any other group of children. If we can sort out those issues at school, and more importantly if we have the resources to do that, the likelihood of exclusion is considerably reduced.

I do not think that any pupil wants to be excluded from school. I repeat again that it is a tragedy for that pupil and that family. If we can identify issues early on and sort them out at school, and if we have the resources to do that, the problem of school exclusions becomes considerably reduced. However, when there are exclusions—I am looking at Amendment 43—it is important that the mechanisms of exclusion are properly conducted, that the families can make representations on the proposal to exclude, and that there is an opportunity for them to appeal against that exclusion. There are often certain circumstances, and my experience is that schools and head teachers do not want to exclude. It is the final avenue that they have to go down, and if any reasons come out on appeal, it is not an admission of failure by the school or its leadership. They are more than happy to understand those reasons and to reconsider the situation. Finally, we must make that process transparent. We must make the language we use and the way we carry out the process as simple, clear and concise as possible.

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My Lords, the noble Lord, Lord Storey, has just told noble Lords about Amendment 43 in the name of the noble Baroness, Lady Walmsley, to which I added my name. Apart from saying that it is one that I support very firmly, I think that one can give only full-hearted support to almost all these amendments.

Listening to my noble friend Lord Ramsbotham made me think back all those years to 1979. Before then, I became quite involved with autism. When my noble kinsman became Chancellor of the Exchequer, we gave Christmas parties for autistic children. They were very informative, if I may say so. They were enchanting children, but quite clearly with problems and needing a great deal of help.

Where are we now? We now have a spectrum that is much bigger and more complicated. We have heard about ADHD, which, from what my noble friend said, has clearly not been as recognised as it needs to be to reduce the cost to everyone concerned—to put it on a level as basic as that. Not just in this area but in others, there have been many more such children over time. I do not know what that has to do with; maybe it is because parents have children earlier. One could say a lot about equal opportunities to make things happen rather more than they are at the moment. This is a major problem. Apart from doing the very best for every child, as with Every Child Matters, it is in all our interests to see that we provide the fullest possible life for these children as they grow up to enable them to make the fullest possible contribution to society and each of our communities.

I hope that the Minister, who has had an awful lot to think about today, can take all this on board on top of everything else and, above all, will draw it to the attention of the other place, which, as has been said on several occasions, has not given the matter that much attention. It may be that there is not the knowledge or experience there—I shall not say expertise—that so many of your Lordships have had that enables them to shed a more penetrating light on the issues that are being looked at.

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I also support the noble Lord, Lord Storey, on Amendment 43, to which the noble Baroness, Lady Howe, has added her name. Almost by their nature, children who are excluded can be stroppy and awkward, but what is hidden—and what they probably fight very hard to hide—is that they are really very scared and apprehensive of the whole process. There is no provision in this Bill to show that children also figure. There is no provision to ensure that they are aware of the process, to allow them to make representation themselves to the panel or to appeal against their exclusion.

This amendment calls upon those who are involved in the process to ensure that the pupil is clear about these issues—about the reasons and the evidence. The language that is used should be in the appropriate tongue or at the appropriate level to allow the pupil to be completely clear about what is happening. They should know who is going into the process. There should be no doubt for the child what is there before them.

One thing that I would like the Minister to consider, should he be minded to do so, although it is not written as part of the amendment, is that the child could have an advocate with whom they could work as they go through the process. That could be useful.

The amendment would align England with the devolved nations. It would also put England in line with Article 12 of the UN Convention on the Rights of the Child and would meet the recommendations of the Committee on the Rights of the Child. There is an element of natural justice to it and, whatever the reasons for the exclusion, the child deserves that.

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My Lords, I hope that the Committee will forgive me for intervening briefly but the last point is very important. What has triggered the behavioural deterioration that has resulted in exclusion? These children may already have special educational needs. The behaviour may be down to bullying but sometimes it is due to abuse. Sexual abuse is particularly difficult to uncover in these children. It may also be a grief reaction to loss or bereavement, which can sometimes be delayed. One problem is that in the majority of our schools staff do not have adequate training to deal with children who are bereaved and have bereavement and loss reactions. The reactions to grief and loss in this group of children can appear to be disruptive and bad behaviour, and it can exacerbate other behaviours in the children around them. Therefore, the triggers that have set this cascade towards exclusion going are absolutely critical, and if we do not focus on them we will continue to fail children over time.

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My Lords, I rise briefly to address some of the issues raised by the noble Lord, Lord Ramsbotham, in Amendment 39A. His comments, which I strongly support, take us back to 1979 and the Warnock report. They take us back to why that report and the 1981 Act moved away from the categorisation of special needs and conditions associated with special needs and towards two things. The first was to look at the severest cases and to make sure that they were properly assessed with a statement of special needs, which then had to be statutorily supported in our schools. I very much supported that at the time.

The Warnock report also recognised that in 1979—not in 2011—some 20 per cent of our children had some form of special needs which should, if recognised, be supported within the school community. From that time through to when I entered Parliament, I spent most of my professional career working first in the north-east, opening the first school to look at the inclusion of children with physical impairments; and then latterly in Leeds, working to ensure that children with severe learning difficulties—mostly Down’s syndrome, hearing impairment and sight impairment—became part of the mainstream setting.

In all those cases, both in the north-east, where we did some pioneering work with NFER and then HMI, and in Leeds, the crucial factor—I am sorry that the noble Lord, Lord Sutherland, is not here at the moment—was training your staff. You can identify until you are blue in the face but, following that identification, you have to ensure that you translate the needs of the child into an appropriate action point, as the noble Lord, Lord Storey, said, with the appropriate resources. This is not a massive resource issue but it is a training issue. It is a question of ensuring that people have the skills to support these children. I am sorry that the noble Baroness whose name I should remember—

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Finlay.

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I apologise. She is so famous that I get star struck. Not only was the noble Lord, Lord Finlay—I am sorry; I have given the noble Baroness a lesser status. I shall shut up before I dig any more holes. The reality is that unless you look at the child in the round you will start to get these narrow categorisations. That is my worry about the noble Lord’s amendment; if we go back to looking for a categorisation, we will start looking in silos rather than at the whole child within the whole school and indeed in the broader community. I ask the Minister, when he considers these issues, to do so in the round. The danger of an education programme that looks at giving autonomy to every single school in the country, both secondary and primary, is that it becomes more and more difficult to find opportunities to do the training and create the systems.

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As noble Lords know, the clause changes the appeals process for pupils if they are permanently excluded. It removes the ability to appeal to an independent panel with the power to reinstate a pupil. It does not make any provision for, and does not seem to recognise, the fact that the vast majority of children who are excluded have a special educational need or a disability. As noble Lords have already alluded to, particularly the noble Lord, Lord Touhig, this group of amendments focuses on trying to mitigate the even greater impact of these proposals on SEN and disabled children by proposing assessments and reports at various stages in the process that the Government are now putting forward. I support all the amendments in principle. I am speaking to those from my noble friends and me in this group—Amendments 36, 39 and 54—the last of which is slightly different.

The noble Lord, Lord Storey, was right to alert us to two things. First, there are the traumatic and possibly long-term consequences for a child of a permanent exclusion; it can stay with them for many years and affect their job prospects as well as their academic record. Secondly, there are the difficult decisions that schools have to make, particularly those working with difficult children and in challenging communities.

I accept that, but I would also say that in taking these decisions it is important that the process demonstrates to parents, to all the pupils and to staff that there is a process of natural justice—the noble Baroness, Lady Jolly, referred to this. Whatever the difficulties that schools are facing, is it right that there should be a process in which there is no opportunity for a decision of an independent tribunal that says, “Actually, we think that this decision was the wrong one” and reinstates the child? I pose that question because it seems to be an important one. What are we saying to children and parents if, after a permanent exclusion, we push them through that process but they do not have the redress that we would all have in any other situation about a decision of such seriousness that affected our future? We talked before about messages, and this seems to be really the wrong message to give to everyone, not just to the children concerned.

We heard a great deal about the evidence that children with special educational needs are grossly disproportionately represented in the figures for permanent exclusions. With respect to the Minister, the issues that he has to address with regard to this group of amendments are as follows. The evidence now is that, even with the power of reinstatement, and even though it is rarely used—it is used in only 10 per cent of the cases that go to appeal; there are only 60 cases a year out of more than 600 that appeal—schools are still disproportionately excluding children with special educational needs and disabilities. Therefore, what will be the effect of removing even that small check and balance, which will be in the back of a governing body’s mind when it is making this decision? One can conclude from the evidence before us of what happens next only that the removal of the power to reinstate will, if it does anything, compound the position of children with special educational needs and disabilities, making it more likely that they will be excluded permanently. That is why noble Lords have tabled this group of amendments, including those in my name and that of my noble friend—to mitigate that effect.

Amendment 36 will require a responsible body to consider a report on the pupil from the special educational needs co-ordinator when considering whether to exclude. Amendment 39 will require a special educational needs assessment of every child at the point of permanent exclusion to go before the review panel—that is, the next stage when a child has asked for a review.

A great deal of concern has been expressed by several important bodies, including the Education Select Committee, the Joint Committee on Human Rights and the Administrative Justice and Tribunals Council, which said:

“It is not entirely clear from either the White Paper or … the Bill what the position is regarding exclusion appeals which raise disability discrimination issues”.

By removing the appeal panels and replacing them with review panels that lack the power to reinstate, there is a clear risk that children with special educational needs will be even more disproportionately excluded. I am aware that the disability-related permanent exclusion cases, and those of pupils with statements, can be heard by a special educational needs and disability tribunal—a First-tier Tribunal. However, I ask the Minister: what about children with special educational needs who are not statemented, or those whose needs have not yet been identified at all? There is a big gap there.

There are concerns—expressed by the Alliance for Inclusive Education, for example—that parents will be required to jump over another legal hurdle of proving that their child is disabled to reach a level of appeal at the tribunal where they might get an impartial view, with the power to reinstate, from a trained solicitor or someone legally trained. The review panels will consist completely of lay people with no legal background, which is another important consideration. I know that the Joint Committee on Human Rights recommends that consideration be given to the suggestion of the Administrative Justice and Tribunals Council that all appeals should go to the First-tier Tribunal. Is that sensible and reasonable? Is that the course that the Government want parents to take? Should we send all appeals to that tribunal, rather than having, at a closer level to the school, a proper independent review panel?

Amendment 54 relates to the absence of checks and balances. It would require schools to retain financial responsibility for children whom they exclude permanently, as well as responsibility for their future educational outcomes. I know the Government are piloting this approach; it was referred to in the White Paper. However, I should like to know from the Minister whether the Government need legislative power to bring in this provision, assuming the pilots make it look feasible. If they do, would it not be a good idea to include it in the legislation that is before us at the moment, at least on an enabling basis? Such a responsibility to the educational future of a child, both financially and for the outcomes that they achieve, would provide another useful psychological check in the minds of the members of the governing body when they consider permanent exclusion, rather than the school simply being able to pay a fine and get rid of children who are difficult to deal with. In speaking to my amendments, I also support the other amendments tabled by noble Lords in this group.

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Is it in order for me to ask a question? I agree with much of what the noble Baroness says, but does she not recognise that sometimes sending a pupil back to the same school might not be appropriate and might be very difficult both for the school and for the child? The school’s duty is to find proper resources at another school, or indeed at another unit in the same school, so that the education can continue. This is relevant to Amendment 54, because the school could keep the child on the roll and make sure that they had a proper education. Does she agree?

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I agree in principle. The wording in the amendment,

“to retain an excluded pupil on the roll”,

means that the child is still recognised as having a connection with the school and that their education elsewhere needs to be funded and their outcomes included. That is one of the problems with the approach that we are discussing, because it does not allow for that subtlety. A panel might decide that the decision to exclude was wrong and that in principle the child should be reinstated, but there then needs to be a discussion with the child, the parents and the teachers as to the best course of action. For the child to go to another school with their head held high because a positive decision had been taken would be very different from their going to another school because they had been permanently excluded. It would wipe the slate clean, and they might well be better off having another opportunity elsewhere. I wish I had been clever enough to table an amendment that could allow that degree of subtlety, but I agree with the noble Baroness that that is ideally what should happen.

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My Lords, a child is disadvantaged in the system not only because he might have SEN or a disability; he is disadvantaged because of the colour of his skin—something he cannot change. I have heard and seen nothing that would make that case better. I have spent many years going into schools. This is a multiracial society, but racism is still alive and well, and children are hit most when they are young and at school. I just feel that this Bill gives us an opportunity to do something about this. People must unlearn their racism when they teach. I am very happy to talk about this outside, but I waited patiently to hear one person say they realise why young black men and women are in the prison system. If you trace it back, you will find that they were excluded from schools. Second-chance education often helps them. Many people may disagree with me. I have heard people tell me that they are not racist. I have some amazingly subtle ways of asking them questions. They then discover that their conditioning has made them racist. The colour of skin is an important thing for a multiracial society, and I ask noble Lords to give some thought to that.

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My Lords, I apologise for being absent for much of this debate. I have an amendment in this grouping, Amendment 52A, and I would like to speak to it briefly if I may. It states:

“A review panel may, following a review under this section, direct the Office for Standards in Education, Children’s Services and Skills to undertake an inspection of the school concerned”.

I hope that the amendment has not been degrouped from this grouping of amendments.

The Minister was kind enough to write to me with some information about the review of Ofsted. I understand that it is looking for new triggers for inspections and I tabled the amendment in order to probe the Minister on whether this might be one way of doing so. It may not be to direct but to encourage Ofsted to inspect a school that has excluded a child. Having spoken recently with a head teacher who sat on a panel dealing with young people who had been excluded, it seems to me that a small number of children are put back into the system and that it is a necessary check. The Minister knows how much sympathy I have for his push to give more autonomy to schools and the professionals working in them.

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My Lords, exclusion should be the last resort, a statement with which everyone here wholeheartedly agrees. There was agreement on that when we discussed it on Tuesday and it was a message that I received clearly from the All-Party Parliamentary Group on Children, which I was lucky enough to meet last week, and it has been reiterated again today.

Therefore, in responding to this group of amendments, I want to start backwards with Amendment 54 spoken to by the noble Baroness, Lady Hughes, and the case for trialling a new approach to exclusions. In our White Paper, published last year, we set out our plans for such a trial. It is worth rehearsing our objectives because this goes so much to the heart of what we have discussed today on exclusions. They are to encourage early intervention; to address behavioural problems and their causes; to keep pupils in their schools wherever possible; and, if it is not possible, to ensure that they receive high-quality education elsewhere. It is worth restating that because it comes down to a point that we debated previously—that the way in which legislation is drafted means that one often starts the discussion back to front. I want to emphasise clearly that our objective, which I know is shared by everyone here, is that exclusions should be absolutely the last resort and the drive of government policy going forward will be to try to find ways of avoiding it.

We know that some areas have already made a lot of progress in this area of the kind referred to by the noble Baroness. Cambridgeshire has devolved responsibility for all its alternative provision to clusters of schools, and they are given a share of the local authority’s budget to spend and are allowed to keep the savings. It has seen a reduction of about two-thirds in the number of pupils referred to PRUs by secondary schools. At the all-party group meeting last week, we heard also about Devon. There is clearly good practice out there from which we are keen to learn.

In the trial areas, a school that excludes a pupil will then have to find and fund an alternative full-time placement. That relates to the point made by the noble Baroness, Lady Warnock. Knowledge of the pupil’s needs and history should assist in finding the most appropriate provision. Some of the funding currently retained by local authorities for alternative provision would be delegated to schools for this purpose. That is the idea of the trials. More than 50 local authorities have expressed an interest in taking part in the trial and we are finalising plans for it to start this autumn, involving between 15 and 18 local authorities. Officials are discussing the final details with those schools, and we hope and believe that this large trial will enable us to identify and work through all the issues, find solutions and modify our approach should that prove necessary.

Amendment 54 seeks to legislate now for that approach. I am sure that its purpose is to provide an opportunity for this debate. However, our view is that we need first to have discussions with head teachers and other people with know-how in this area and that we should not rush into legislation on this matter. We hope that the trials will start in the autumn and run for two or three years. We do not need legislation for the trials, but having learnt from them we will then legislate if we need to. That is something that my honourable friend Sarah Teather is running with.

One more general point: the noble Baroness, Lady Hughes of Stretford, asked some perfectly fair questions about our overall approach to the independent review panels rather than the independent appeal panels. If she will bear with me, we will discuss that whole issue in the next group of amendments spoken to by my noble friend Lady Walmsley, so perhaps we can pick up on those then.

In this group, I want to deal specifically with the amendments that were discussed and those that concern support for pupils with special educational needs and disabilities. The noble Lord, Lord Rix, is sadly not with us, but I was grateful to him for coming in to talk to me and for a separate meeting that I had with the Special Educational Consortium. The noble Lord, Lord Touhig, set out the figures clearly and compellingly that children and young people with SEN and disabilities have disproportionately, strikingly poor outcomes. The identification of a child’s needs is an essential part of meeting those needs, and can enable schools and other services to intervene at an early stage.

I want to say a few words about early assessment. Our Green Paper sets out proposals to improve the early identification of children and young people’s needs and secure the right support from the outset. It proposes to replace statements of special educational needs with a single assessment process to try to work towards a combined education, health and care plan so that health and social services are included in the package of support. If the Committee will forgive me, I want to quote briefly from our Green Paper because it sets out clearly our whole approach. It states:

“We know that there is a group of children with SEN who are currently excluded on multiple occasions on a fixed-term basis, and there may be other excluded pupils whose SEN have not yet been identified. Incidents which prompt multiple exclusions will often be an indication that a pupil has underlying difficulties that may not have been correctly identified or met”.

The Green Paper continues:

“In order to offer routinely more effective early support, we will recommend in exclusion guidance that children are assessed through an effective multi-agency assessment for any underlying causal factors. We will suggest that schools trigger this assessment in instances in which a pupil displays poor behaviour that does not improve despite effective behaviour management by the school”.

I read at some length from the Green Paper because I hope that it will provide some reassurance to noble Lords. Points were properly raised and noble Lords wanted to be clear that the Government understood the importance of this. I hope that that demonstrates that we do.

We intend to include the importance of multiagency assessment in guidance on behaviour that we hope to issue next month. The noble Lord, Lord Touhig, who I know has been speaking to the Special Educational Consortium, raised the concern that this guidance is non-statutory. I am happy to tell him that we will make this guidance to school governors statutory in the way that he suggested. It will also feature in the additional guidance on exclusions that we will issue after the passage of the Bill.

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Will the Minister make it clear in the guidance that, if the assessments are done at an early stage as he envisages, they will be made available and the governing body considering a permanent exclusion—and then the review panel at the point of review—will be required to see the assessments that will have recently been done?

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In that case, we would expect the panel to ask for such an assessment if it has been made.

We then turn to the amendments that require an automatic trigger to initiate an assessment when a child has been given a certain number of fixed-period exclusions. Whereas I hope that I have set out our thinking on the importance of good early assessment, we are reluctant to set in legislation such an automatic link, tying assessment to a set number of fixed-period exclusions. The approach that we have set out in the Green Paper can achieve the same objective, and multiagency assessments should take account of all special educational needs, including attention deficit hyperactivity disorder, which was the point raised by the noble Lord, Lord Ramsbotham, who is no longer in his place. I will follow up with him his specific points.

We then considered amendments that require certain conditions regarding special educational needs to be met before a pupil could be permanently excluded. For example, the governing body would have to consider a report from the special educational needs co-ordinator, the SENCO, before excluding a child; or a school could not exclude a child with special educational needs without showing that it had made attempts to address those needs.

Governing bodies must take account of relevant information pertaining to the child when considering exclusion. They already have a duty to secure as far as they can that special educational provision is made for those pupils with special education needs, and I will be happy to ensure that future versions of guidance make it explicit that they should take account of information relating to the child’s special educational needs, if any, in this situation. That is currently implicit in the guidance, but in view of the proportion of excluded pupils who have special educational needs, I accept that we should make a more explicit reference in future guidance.

I would hesitate to be so prescriptive as to say that there must be a report from the school’s special educational needs co-ordinator. In many cases, I agree that the SENCO may well be the appropriate source of information, but I would rather limit guidance to the principle that the governing body should take account of information that relates to the child’s special educational needs but allow it some flexibility on the question of from whom that advice should come.

With regard to whether a school should be able to exclude a pupil without demonstrating the attempts that it had made to meet his or her needs, I hope that what I have said will have demonstrated to noble Lords that we are committed to ensuring that children’s needs are assessed early. We would wish governing bodies to consider what their school had done to assist the child, and that should be a factor in their decision.

However, to say that a school could never exclude a child if it had done too little to meet his or her needs would be a step too far. To take an extreme case, if a child whose needs had not been suitably addressed was guilty of a serious assault on another child or a member of staff, exclusion may well be the most appropriate action for the sake of other pupils and staff. We would then want action taken to address that child’s needs so that they could better participate in education, but that would be after the exclusion rather than instead of it.

In terms of the part played by the special educational needs expert in the review panel process, noble Lords will know that we made a commitment in the other place to include provision in the regulations to give parents the right to ask for a special educational needs expert to attend the panel. It will be for the parents to determine whether they believe the SEN expert is required, irrespective of whether the school or local authority has identified any special needs. Given that, I am not convinced that there is a pressing need to include a reference to this in the Bill.

We will ensure that parents are made aware of their right to ask for the presence of such an expert. After the passage of the Bill, we will consult on regulations and guidance, and I have asked officials to consult local authorities, schools, parents’ representatives and others on how we can best ensure that parents are made aware of their rights.

I move on to Amendment 43, spoken to by my noble friend Lady Walmsley. The principle that the pupil’s views should be heard during the exclusions process is very much one that I support. More generally, the Government are committed to ensuring that children and young people’s views are listened to and respected. I can confirm that we will work with children’s organisations to revise the current statutory guidance to set out clearly the legal obligations that apply to schools in relation to consultation with pupils.

Through guidance, we have encouraged the involvement, where appropriate, of pupils at all stages of the exclusions process—subject to their age and understanding. This begins at the start of the process. The guidance says that before excluding a pupil, the head teacher should inform him of the reasons for the intended exclusion, the length of the exclusion, if for a fixed period, and give the pupil a chance to have his say.

The section of the guidance that covers appeal panels states that pupils under 18 should be encouraged to attend hearings and speak on their own behalf if they wish to do so, subject to them being able to understand the process. We will need to revise the guidance in the light of the changes to panels proposed in this Bill. I can reassure noble Lords that we will keep similar messages in the revised guidance. I hope that the noble Lord will agree that this guidance does not merely pay lip service to young people’s participation but actively encourages it. This guidance was prepared under the previous Government, but that principle is one that we support.

It is important that a pupil should have the right to his or her say in this way, and we want schools and review panels to listen to them. However, that is rather different from making more formal representations, and we believe that parents should have that more formal role. However, we do not want to rule out further changes in future. We have taken note of the views of those who want to extend children’s rights in this area, and we are willing to consider how such arrangements could work. Noble Lords may have seen in the SEN and disability Green Paper that we are planning to run pilots where children will have a right of appeal to the first-tier tribunal for all tribunal hearings. I ought to make clear the distinction between the trials of the new approach to exclusions and these pilots, which focus not on exclusions but on how young people could appeal directly to the first-tier tribunal on all the issues for which the tribunal is responsible.

The pilots will test in a couple of areas of the country whether this approach can work. They cannot begin until we have modified primary legislation, which would not be until 2012 to 2013 at the earliest. But we will use those trials, assuming that we get the legislative go-ahead, to inform our future policies in these areas.

The noble Earl, Lord Listowel, mentioned an important point about Ofsted. I support the principle behind this amendment that a review panel should be ready to highlight concerns and bring them to the attention of Ofsted or other relevant bodies, but I would not go as far as directing Ofsted to inspect the school. But a review panel would be able to write to Ofsted, or to the Secretary of State, expressing its concerns, and suggesting that an inspection might be useful. I believe that an independent appeal panel could do that now, although I do not know if it has ever happened. I think it would be useful for us to refer to that possibility in guidance so that review panels consider the option of making a reference to Ofsted. I am therefore grateful to the noble Earl, Lord Listowel, for raising the issue.

Before I finish I would like briefly to speak to government Amendment 60, which is in my name. It replaces the wording of “exclusion appeal panel” with “exclusion review panel” in Section 31A of the Local Government Act 1974. This is a consequential amendment and should have been included in Schedule 1, but was overlooked when the Bill was drafted, for which I apologise.

We have had a broad set of amendments and debate. I hope that I have been able to provide some reassurance generally about our approach and some specific further reassurance, as well as some more information. In the light of that, I hope that the noble Baroness will feel able to withdraw her amendment.

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I make a small intervention on behalf of the noble Baroness, Lady Howells. The Minister has not responded to the point that she made on the issue of race and ethnicity. If the noble Lord, Lord Ramsbotham, was here now he might be able to confirm the issue to which he referred—the high percentage of 72 per cent of SENs in prison. There is also clear disproportionality associated with that, within the context of colour discrimination, as it affects black young boys in exclusions and in custody, black young boys experiencing stop and search, as well as black young boys’ DNA being on data registers. Those are all contributory factors that lead back into issues of behaviour in schools, which we have to address.

We cannot have a debate and a consideration of these provisions and the subsequent ones without recognising the issue of colour discrimination. It would be helpful if the Minister could say before he concludes what efforts he will make to have discussions with the noble Baroness, Lady Howells, and others, about the arrangements to put together guidance and the provisions dealing with assessments before exclusion, which would be helpful to reduce the disproportionality that exists.

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My Lords, I, too, support what the noble Baroness, Lady Howells, has said. I feel very sad that three people of culturally diverse backgrounds have had to bring up this point. I should like the Minister to respond to her and for others to be part of this conversation.

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Forgive me, my Lords. I meant no discourtesy to the noble Baroness, Lady Howells, and I hope she will understand that. I meant no discourtesy to any noble Lord in my reply. I am grateful to noble Lords for having raised the point and for reminding me that I did not do so. I was responding to the specific points relating to SEN. I obviously accept the point that the noble Lord made about exclusions and disproportionality, and the statistics speak very powerfully. That is precisely the sort of issue that the exclusion trials ought to take into account. Regarding where we have got to on the trials, my understanding is that we want to look at a range of issues concerning exclusions in different parts of the country and in different settings. It would be absolutely right to do that. If it would be helpful, clearly I would be more than happy to speak to the noble Baroness and to bring together some officials who can explain where we are with the trials. We could have a conversation to make sure that these important points are picked up.

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I hope that noble Lords will forgive me as I, too, forgot something. I forgot to say that the Minister sent me a three-page letter the last time I spoke in the debate. I thank him very much for that and I am sharing it with my colleagues.

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My Lords, perhaps I may ask my noble friend a couple of questions. First, I should be very interested in being included if he is telling people about the trials. The important thing is that they focus on the distillation—on the kids at the end who do not respond at the beginning to whatever is done. They are the ones who are abandoned at the end of the system. They are allotted four hours’ tuition at home but that does not happen and people forget about them. I very much hope that, as is the case with prisons, organisations are given money on the basis of the results that they achieve. We may try that at the back end of some of the trials so that innovative ideas are encouraged in rescuing these children who have proved difficult to educate.

Secondly, am I right in understanding that, when a school is concerned that a pupil may have special educational needs which may be causing problems, it has the absolute right to require and obtain the assessment when it is needed, rather than, as in the current system, waiting for the LEA to decide that it is prepared to do it?

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My Lords, I thank the Minister for his reply to my amendment. I am pleased to hear that he is thinking of amending guidance in this way and I thank him.

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My Lords, I think that once more it falls to me to don the mantle of the noble Lord, Lord Rix, albeit I cannot possibly do it justice. I am most grateful to all noble Lords who have taken part in this debate and I should like to make just a few points.

I was very grateful to the noble Baronesses, Lady Finlay and Lady Howells, in particular, for reminding us that children are not just excluded because they are naughty; there are many underlying factors. The noble Baroness, Lady Howells, reminded us that it could be, at worst, racism or, at best, a misunderstanding of the behaviour of certain cultural groups. The noble Baroness, Lady Finlay, reminded us that the child might be responding to a terrible trauma in their lives such as bereavement. I remind the Committee that sometimes children behave as though they have been bereaved when their parents split up. A parent has not died but is no longer in the child’s life and the child responds in that way. Therefore, we have to look at the underlying factors, whether they are the ones I have just mentioned or the SEN factors that many noble Lords have referred to.

It is particularly important that parents have confidence in the system of exclusion and the system of appeals. In that respect, I certainly support Amendment 52 in the name of the noble Lord, Lord Touhig. Parents should be able to choose their own SEN adviser. Only then will they have real confidence in the advice to the appeals tribunal.

I am grateful to the Minister, as I am sure the noble Lords, Lord Touhig and Lord Rix, would be, for saying that the guidance will be made statutory. I am also grateful to him, following something I said at Second Reading, for making it possible for me to meet Charlie Taylor. He is supervising the pilots where schools retain responsibility, in terms of both the financial bottom line and academic achievement, for where they place a child who might otherwise be excluded. It sounds like a very interesting innovation, which I gather will probably go on for two or three years. I am delighted to hear that the Government have undertaken to implement that sort of arrangement more widely if it proves helpful in preventing children being excluded in an unwarranted and inappropriate way.

Finally, on Amendment 43, I am grateful to the Minister for saying that the guidance will be revised. Will he ensure that children themselves can appeal against exclusion in their own right, as they can now do to SENT? That is, will they be able to appeal against an exclusion to the independent appeals panels in the same way that they can to SENT? Perhaps the Minister will write to me about that. I know it is a fairly new situation, but for me and others it is an important “rights of the child” issue.

On behalf of the noble Lord, Lord Rix, I thank the Minister for all his responses to the debate and beg leave to withdraw the amendment.

Amendment 34 withdrawn.

Amendments 35 and 36 not moved.

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My Lords, this may be a convenient moment for the Committee to adjourn until Monday at 3.30 pm.

Committee adjourned at 6.07 pm.