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Education Bill

Volume 729: debated on Monday 4 July 2011

Committee (3rd Day)

Relevant document: 15th Report form the Delegated Powers Committee.

My Lords, we have done as much as we can to make more room for your Lordships by providing smaller chairs. That is all that we can do. If noble Lords consider that it becomes too hot in this Room, I shall allow them to take off their jackets if they so wish. It is the Chairman’s prerogative. If there is a Division in the Chamber, I shall ask the noble Lord who is speaking at the time to cease speaking and we will resume after 10 minutes.

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

Amendment 37

Moved by

37: Clause 4, page 8, line 29, leave out from beginning to end of line 12 on page 9

My Lords, I shall speak also to Amendments 38, 40, 44 to 47, 53 and 55 to 59 in my name.

I thank the Minister for the letter that I received today following our debates on Thursday. I particularly welcome the pilot to which he referred that allows children to apply in their own right to the Special Educational Needs and Disability Tribunal, with the possibility of that being extended across the country. He also referred to the possibility of regulations to allow them to appeal in their own name to the independent review tribunals when they come into force, and which we are about to debate. I should point out, however, that it would be discriminatory if children were not allowed to appeal.

I and others have been very troubled by the proposed changes to the right of appeal against exclusions. None of us wants to undermine the authority of head teachers and we understand their concerns. However, the fact that some appeals succeed indicates that not all decisions to exclude are correct. The effects of an exclusion on the life of a child are so extreme that it is vital to get these decisions right. I appreciate the Government’s attempt to put some sort of appeal in place in the form of the independent review panels but, frankly, that is not really good enough. I believe that if the appeals go to the right body with the right powers, expertise and experience, all will be well and justice will be done.

These amendments remove the education review panels created by the Bill and replace them with the right for all excluded pupils to appeal against permanent exclusion to the First-tier Tribunal for Special Educational Needs and Disability, as consistently recommended by the Administrative Justice and Tribunals Council. Here is the problem: the new review panels can only uphold the decision to exclude, recommend that the governing body reconsider the case or quash the decision and order the governing body to reconsider where it finds the decision to be,

“flawed when considered in the light of the principles applicable to an application for judicial review”.

The new review panels will not have the power to direct reinstatement. They will have less scope within which to operate and make decisions, but the nature of those decisions will be increasingly complex because they will have to decide whether the governing body’s decision was flawed in the light of the principles of judicial review. The Joint Committee on Human Rights and the AJTC have concluded that this does not provide adequate access to a fair and independent tribunal or an adequate remedy, and is contrary to Articles 6 and 13 of the ECHR.

There are many unanswered questions, including how the recommendation or direction to review will operate and the consequences of a governing body not complying with a recommendation or reaching the same decision to exclude again, following a direction to review. What happens to the pupil? Do they get another appeal? What timescales will operate and how do budgets cope with these additional procedures, especially given the additional powers given to the review panels to adjust school budgets, following a permanent exclusion?

One might ask: does the right of access to a court or tribunal apply to school exclusions? The Government state that it does not because of R (on the application of LG) v Independent Panel for Tom Hood School, decided in February 2010, which found that exclusion is not determinative of a civil right to which Article 6 applies, and Simpson v UK, which found that Article 6 does not apply to educational disputes. However, in Oršuš and Others v Croatia, decided a month later in March 2010, the European Court of Human Rights stated that Simpson v UK was no longer good law, so that Article 6 does apply to educational disputes. In Oršuš, the dispute related to discrimination. The JCHR is of the view that, if Article 6 applies to discrimination in schools, it would also apply to exclusions, which is a strong case. In Oršuš, the court also referred to its case law, which establishes that where a state confers rights that can be enforced by a judicial remedy, those rights can in principle be regarded as civil rights to which Article 6 applies. So the judicial review bit is very significant.

The JCHR is of the view that in a case of permanent exclusion, the right in question is not just the right to an education but the right to continue to attend the school at which the child is enrolled. That right is enforceable before the ordinary civil courts by way of judicial review. The JCHR therefore finds that, as a matter of convention law or of the common law, the right to access to an independent court or tribunal applies to permanent exclusion from school.

Therefore, we now need to ask whether the new review panels are really an independent and impartial tribunal. The Government’s view is that they are. However, the review panels will be able only to quash a decision and order reconsideration. That does not create the possibility for a proper review of the facts, so does not meet the requirements of a fair trial. Given the consequences of exclusion, it is especially important that the cases are examined carefully to ensure that the decision was correct and can be justified, as I said.

The AJTC has the statutory remit to keep under review the administrative justice system and the constitution and workings of tribunals within its oversight. It has taken a keen interest in the operation of school exclusion appeal panels for some years, and has concerns about the Government’s proposals. It notes, as has been mentioned in Committee, that 70 per cent of permanent exclusions affect children with special educational needs. It has consistently recommended that all appeals against permanent exclusion should be heard by the First-tier Tribunal, which it points out can easily be renamed the “first-tier tribunal (education)”.

The AJTC notes that the Government’s proposals are based on the assumption that all exclusions concern children who have been violent against teachers or pupils. That is not the case. I have here a table that shows exclusions in 18 local authorities across the country and 82 exclusion appeals in a particular year, of which 22 were successful. Of the 82, just under 80 per cent were for violent offences; one in five was for non-violent offences.

The AJTC has found that the small percentage of exclusions which go to appeal, which is around only 9 per cent, are more likely to be cases where the parent feels a real sense of injustice. It is therefore interesting to look at the reasons why some appeals succeed. The majority succeed either because the panel did not accept, on the evidence before it, that the pupil had done what he or she was alleged to have done; or because exclusion was a disproportionate punishment for the alleged offence.

A couple of other points need to be made. The Government claim that the SEND reviews take too long. It is true that there is clearly room for improvement, but they are piloting an eight-week turnaround time for appeals, which is very much better than they have been achieving. Secondly, since 70 per cent of all exclusions concern SEN and therefore go to the First-tier Tribunal anyway, it would be much more economical for all exclusion appeals to be heard by the tribunal, instead of requiring each local authority to set up and operate a separate system of review panels to deal with only 30 per cent of the total number of appeals. Also, I regard it as discriminatory to allow SEND pupils to apply to a proper tribunal, while fully able pupils can apply only to a panel with reduced powers.

I have tabled two groups of amendments that do roughly the same thing. I shall mention the difference. Amendments 37, 53, 55, 56, 58 and 59 have been proposed by the AJTC. The rest achieve roughly the same outcome but with one small difference. My noble friend Lord Storey will speak to Amendment 47 in this group, which covers a slightly different matter and has to do with the fine.

What do my groups of amendments do? The right of appeal to the First-tier Tribunal is separated in the Bill from the power to exclude, since this would have the effect of not requiring the tribunal to have regard to the Secretary of State’s guidance, and so maintain the tribunal’s independent discretion. The AJTC group gives the tribunal the power to state that reinstatement would be appropriate but is not practicable in the circumstances. This could happen if, for example, the pupil, parent or guardian does not want reinstatement, even though they have a right to it, but has brought the appeal because they want to state their case. It could happen where relationships have broken down to the extent that it would be more in the interests of the child and the rest of the school community if he were to go elsewhere. The other group of amendments does not give this power, but the tribunal should have it; it is crucial. Where relationships have broken down to such an extent that the head, for various reasons, does not want to let the child back into the school, this would give the tribunal the opportunity to take that into account and make the case that the child has been unwarrantedly excluded, without insisting on reinstatement.

Should the department maintain its argument that sending all exclusion appeals to SEND tribunals suggests that all exclusions concern children with SEND, this could easily be remedied by changing the type of tribunal. This may require a consequential amendment, but I am advised by the Public Bill Office that this could be tabled at a later date. I am also advised that consequential amendments to Schedule 1 may be needed. Again, these could be tabled at a later date when the fate of these amendments is known.

I have received a note of support for these amendments from the National Governors’ Association, which says that the majority of its members support the right of appeal and think that the current government proposals to change to a review panel will be more bureaucratic, and will cause more work, delay and confusion for the parties concerned. I hope I have made the case, albeit rather long-windedly, that justice requires some changes to the proposals in Clause 4. I beg to move.

I should advise the Committee that if this amendment is agreed I cannot call Amendments 40 to 47, inclusive, for reason of pre-emption.

My Lords, I pick up initially on some of the points that were made previously, and which the noble Baroness, Lady Walmsley, has rehearsed. We start from the recognition that a permanent exclusion can have a significant impact on the life of the excluded child, both in the short term on their education, and in the long term. In other words, a permanent exclusion is a very significant decision in the life of that child. It is very important that, in taking such profoundly significant decisions, it should be evident to everybody involved, including parents and children, that there is a process of natural justice whereby schools not only act fairly but are transparently seen to act fairly.

We have all variously recognised some of the dilemmas and difficulties for schools. However, exclusion without the right of appeal to an independent arbiter, with the possibility of reinstatement, is not a positive example of fair treatment. It sets a bad example to the very children whom we are seeking to influence, telling them that this is how things can be done when it suits the authorities.

My second point is one which we started to rehearse when we debated this issue last week but which I think we need to explore further. We know that, even now, schools permanently exclude a disproportionate number of very vulnerable children from specific groups. Last time, we talked a lot about children with special educational needs and disability, and we heard the figures for the number of those children who are excluded. However, there are other groups. The Runnymede Trust has pointed out that in 2008-09 more than 16 per cent of all black Caribbean boys were excluded compared with 8 per cent of white boys—that is, double the proportion of black Caribbean boys. Gypsy, Roma and Traveller children have similar problems, as do looked-after children and those in care.

Therefore, we know that, left to their own devices, schools already exclude disproportionately more of the most vulnerable children in their care. Although the power to reinstate is used very sparingly at the moment, it must surely, if only psychologically, be a safeguard against that trend getting worse. Abolishing it can only make those figures even more embarrassing.

I wish to speak particularly to Amendment 41, which at line 37 on page 8 would insert,

“direct that the pupil be reinstated”.

The amendment would put back to the review panel the power to reinstate and give the panel another option. It is a different amendment from the one that has just been moved by the noble Baroness, Lady Walmsley, but it is in the same spirit. It seeks to put back the power to reinstate. At the moment, the Government’s proposals abolish that power and review panels can at most, where they consider that the responsible body’s decision is flawed, quash an exclusion decision and direct the responsible body to reconsider. However, of course, the responsible body may reconsider and come to the same conclusion. Why would it not do so? Under what circumstances does the Minister think that the responsible body would overturn its initial decision? As a consequence, the rights of a child—perhaps unfairly excluded—to reinstatement would be withdrawn by the Government’s proposals.

The noble Baroness, Lady Walmsley, has explored at some length, so I shall not repeat here, the views of the Joint Committee on Human Rights and the Administrative Justice and Tribunals Council. However, they have both concluded that these measures are contrary to the ECHR, as she said, and that the analysis underpinning the Government’s argument in relation to the noble Baroness’s point about contending that the majority of cases involve violence is fundamentally flawed. The AJTC said that the majority of appeals succeeded because the panel did not accept that the pupil had done what he or she was said to have done or the decision to exclude was not proportionate. Therefore, it is very clearly and firmly of the conclusion that taking away the power to reinstate is wrong and that it is not a fair process, even in the very tiny number of circumstances in which it is applied. Does the Minister accept those conclusions of the cross-party report and will he rethink the proposal to remove the possibility of reinstatement?

My noble friend is making an important case, as did the noble Baroness, Lady Walmsley. Later, we will talk about behaviour and attendance partnerships. Does my noble friend think that the notions of fairness that have been discussed would shift if schools had to remain within behaviour and attendance partnerships and therefore had to make sure that excluded pupils were properly found a place within that community of schools?

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

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

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

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

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

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

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

“I knew I was innocent but”,

the head teacher,

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

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

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

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

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

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

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

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

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

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

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

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

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

Sitting suspended for a Division in the House.

My Lords, some of you might have heard buzzing noises, sounding like bumble-bees, coming out of the speakers. That is because some people have got mobile telephones in their pockets and they are too close to the microphones. Could we leave our telephones well away from the microphones or even switch them off for a little while?

My Lords, I support the sentiments behind these amendments, and those in the opening remarks of the noble Baronesses, Lady Walmsley and Lady Hughes. Some of these amendments are quite technical, but there is something underpinning them in that the proposals before us are, first, unjust, and, secondly, not the best way of dealing with a significant problem. In particular, I support the group of amendments that give a right of reinstatement if an appeal should be successful.

I invite the Minister to revisit the Government’s assumptions that brought about this group of amendments. It strikes me as the sort of thing that is great in opposition but which you hope that people have realised is not very good by the time they get to government. Its starting point was something that we can all share: there are children whose behaviour is such that they ought not to be in schools. They ruin the educational chances of other children and make the lives of teachers a misery. Nobody ought to have to put up with that.

There is another starting point that I support: that the head needs control of their own school. They need to be able to set the rules and regulations. Within a framework their writ must run. That is the nature of leadership. Where this went wrong to some extent is that there is a feeling out there that the problem of reinstated children is bigger than it actually is. Somebody will quote the figures at some point, but it is not a big issue. It does not happen often. On most occasions, the tried and tested system which will now be repealed completely has worked well. Schools, parents, governing bodies, head teachers and pupils will on the whole say that it works well. In any structure in a social organisation like a school or society, there will be times when it does not work well, is a bit frayed at the edges and you might want to second-guess a judgment. We should always try to make that better, to improve the law and improve the process.

I do not know how the Government have concluded that this is the way forward from there. What I really want to test with the Minister is that there seem to be two either/or assumptions underpinning this bit of legislation. The first is that heads are always right and pupils are always wrong, which is a case of infallibility all over again. The second is that even if heads are wrong, we must not admit it. If one of those two assumptions does not underpin this set of amendments, I do not know what assumption does. Both are deeply flawed. I hope that I do not have to say more than “heads are not always right”. I have taught where heads have made the wrong decision about exclusion; sometimes there have been sets of circumstances. It has been absolutely right that the child has been reinstated, and the school has not collapsed. Nobody can say that the head is always right.

I agree about the power of the head, but it must be about having a set of rules that the school community and the parents have bought into, and about enacting those rules. I do not agree with this notion of leadership and headship which says, “I can make the rules up as I go along, and if I decide that you have broken them then I can act accordingly”. It is only by giving that sort of power of rule-making to the head that this legislation makes any sense.

Let us say that we do not agree that heads are always right. I sense that where the Government are coming from is that, in order to support heads, we must support their every decision. That is a miscalculation and a misjudgment, and I choose my words carefully. There are heads in this room who will tell me whether I am right or wrong in this but, to be honest, if a head teacher needed this sort of legal protection to keep order and discipline in their school, I would question the quality of the school leadership. A half good head teacher can manage a reinstatement and the house will not fall down. What seems to be feared here is that, if a reinstatement goes ahead, the head will lose control and authority within the school. Good heads do not do that; they manage it, because exclusion is not the only way in which to ensure discipline and good behaviour in schools.

If we make laws to protect weak heads so that they never have to admit that they are wrong, we will not be producing laws that are good for discipline in schools. We need laws that give heads the right to run their schools, and in our utterances and judgments we always need to support heads in what they do. They live in the real world; the children live in the real world; the parents and governors live in the real world, and nowhere else in the real world is someone proven innocent but not given the right to reinstatement.

I was for many years one of those utterly infallible heads until my governors thought otherwise. Will the noble Baroness comment on the other factor that she has not mentioned? There is a misconception that the organisation that reinstates these children against the wishes of the head and the governors is the local education authority. That is another fallacy that underpins so much of this proposed legislation—that somehow it is pernicious local authorities that want to keep the heads under control. Perhaps she would like to comment on that, given her experience as a Minister and a Secretary of State.

The noble Lord is right. As a not so infallible Minister, I remember the legislation because there was a fear that local authorities would make life difficult for head teachers. If my memory serves me right—and I am absolutely sure that it does on this—there was a requirement in previous legislation to make sure that someone with educational experience was on the appeals panel. Previous legislation has done the mending that needed to be done in terms of the appeals panel. People who have served as Members of Parliament may also know that there has always been a feeling among parents and students that appeals panels lean over backwards to support the schools. If there is a feeling in society, it is not that the appeals panel leans over backwards to exclude the child; it is the other way about. As the noble Lord said, many people on the panels have educational experience and want to support heads. Therefore, the people on the appeals panel are not anti-heads, anti-discipline, anti-order, anti-fairness or anti-justice; they are people who know about education and they try to do a difficult job.

When the noble Baroness talks about heads, I wonder what her thoughts are on the pupil premium that has been introduced by the Government. Interestingly, it motivates heads to admit pupils from poorer backgrounds; and we know that, because of the chaotic backgrounds that some children from poorer backgrounds might have, behaviour might then be an issue to some extent. Does she think that there might be a danger of selection by exclusion, whereby heads take in children to get more money and then, whether deliberately, up front or otherwise, exclude those who are more difficult and damage the education of others?

My thoughts had not gone that far, but my noble friend puts forward a very interesting proposition. I think that perhaps why he thinks that—and why he is right—is because some heads have always sought to manage their admissions through some element of exclusion. There are times when that is right. Some heads, in their first year of taking over a school that has been in very challenging circumstances, have excluded to lay down rules and regulations and to make sure that they can set standards. I understand that, but what the noble Lord suggests would be a terrible thing—and I hope, having put that on record, the Minister will bear it in mind.

I will finish there, because I wanted only to make that brief point. Either assumption is wrong, whether it is about the infallibility of heads or whether it is that when they make a mistake we pretend they have not made a mistake. Worse than that, this is not only unjust and unfair but will do nothing to improve discipline, because the kids and the school community will know that a child was excluded, that the appeal found for them and that the child has not been reinstated. That will do nothing to encourage the school community to support the head. Kids are really good about fairness, and so are parents. The legislation as it has been put to us will not help in that regard.

I have a great deal of sympathy with what the noble Baroness said. I am very pleased that she brought our attention to two factors—that the children who tend to be the subject of exclusion have made the lives of their fellow pupils in their class pretty difficult and seriously hampered their education, and that they have made several teachers’ lives very miserable. There is nothing worse than having a seriously disruptive child in a class when you are trying to teach the rest of the children.

Where I part company from the noble Baroness, on a purely factual basis, is when she says that the clauses in the Bill assume that the head is always right. Of course, they do not. New subsection (4)(c) says quite firmly that the review panel may consider,

“that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review”,

and that it may,

“quash the decision of the responsible body”.

In other words, the Bill clearly assumes that sometimes the head will be wrong.

The other point that the noble Baroness made was about the importance of the head being in authority and being able to control and show leadership in his or her own school. As many of us have said in previous debates and as much research has shown, the authority of the head is paramount in the success of the school. It is not only that the head must be right—and you would hope he or she would be right more times than he or she is wrong—but that the head must be seen to be in control and in authority. If the head is constantly overruled by an outside body, it is very difficult for that to be seen. I agree with that the noble Baroness said—that kids are very quick to recognise what is fair and what is not fair. But we have already established—thanks to the noble Baroness, Lady Walmsley, giving us the figures—that there are very few occasions when the decision of the head has proved to be wrong. Most of the time, the head gets it right, and the excluded child leaves the school a bit more peace and the other pupils more ability to learn than there was before.

My final point is that this does not involve the head alone. It involves the head with the governing body, which will have made the decision as well. There will already have been considerable investigation of the head’s decision. I know that the noble Baroness, Lady Howe, will speak for the authority of the governors. I find it very hard to believe that many cases will go wrong, when the head has made a decision on behalf of a teacher who wishes to exclude a pupil and if that has been reviewed by a governing body. Of course, some will, and the review panel has the power to say so, to stand the decision on one side and to ask the head to go again. I disagree with the noble Baroness when she said that, when the review panel sends it back to the school, it will always repeat what it said before. I do not think that that is so. I think that after the very solemn and rather frightening business of being found to be wrong by an external review panel, the school will certainly think again.

That may be the case but will the noble Baroness agree that in those circumstances at the moment, if the appeals panel decides that the decision was wrong, it has the power to allow the child back into the school? What is proposed now is that, when the review panel puts the decision aside, it cannot make its own, informed judgment—it can simply ask the governing body to reconsider—and it has no power to give the child redress if it is really of the view that a mistake has been made. Does she really think that that is a just process?

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

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

I know what effort heads and teachers make when children are reinstated into schools in difficult circumstances, so I am very pro what is going on; they work very hard. Does the noble Baroness not accept that the child who finds that their case has been upheld but is still told that they are not able to go back to their school would see this as a total injustice? As many of these children are struggling anyway, this simply reinforces their feeling that society is simply not just, so why should they conform and join in with it?

My Lords, I want to talk about Amendment 47, and then make some general comments on the other amendments. Amendment 47 is clear and concise: it is about the £4,000 fine, which is a blanket fine for all schools. For some schools, that might not seem a lot of money; for others, it is a considerable amount. For a small school—a rural village or a small urban school—it is a significant sum. In my area, there is a secondary school with 10 forms of entry. Next to that is a small Roman Catholic primary school with 101 pupils on roll, I think, and £4,000 equates to that school’s entire literacy and numeracy budget. Down the road, there is a small maintained school, for which £4,000 equates to its entire special needs budget. For a large secondary school, £4,000 is perhaps its promotion budget. We might need to link the sum in a fair and equitable way. On this occasion, one size does not fit all.

I turn to some comments made during the debate. I declare an interest as a head teacher of 25 years. I have never excluded a pupil at all. Why? First, we forget that the important thing is not the end of the process but all the things that you put in place beforehand. As I think I said last week, if you have a robust behaviour management policy, you will involve parents at every stage, and the parents are the greatest way of ensuring that a pupil does not have to be excluded from school.

Having said that, my wife is a secondary teacher in a large inner-city school and I have seen teachers’ careers destroyed by disruptive behaviour. We are not talking about teachers who should not be in the classroom but, because of the circumstances—because of poor leadership, because the other issues have not been put in place—their lives as teachers can be wrecked, as indeed can those of the pupils.

Some of you may recall that I said two things last week. I agreed with a noble Lord opposite who said that any exclusion is a tragedy. I also said, however, that teachers have a right to teach and pupils have a right to learn. Pupils also have a right to ensure that a system is fair and just and they are the first to know if something is not fair. In any school it is the pupils who say, “Hey, sir, that’s not fair” or “Hey, miss, why are we doing this?”. If we have an exclusion policy which is not fair and just, pupils will be the first to see that and that is why I support the amendment moved by my noble friend Lady Walmsley.

My Lords, I fully support all the amendments in the name of my noble friend Lady Walmsley and I congratulate her on her tireless efforts to highlight children’s and young people’s rights and well-being. I want to make the case for a group of young people up and down the country, especially in our urban cities, which are littered with potholes of deprivation, low self-esteem and practically no aspiration. As we have already heard, it is a sad fact that many black Caribbean and mixed-race white and black Caribbean boys experience a high number of exclusions. We have heard that 16.6 per cent of all Caribbean boys and 16.3 per cent of all mixed-race Caribbean boys experienced a fixed-term exclusion during 2008-09, in comparison to 8 per cent of their white and 4 per cent of their Asian counterparts.

We have to ask whether society is failing these young people, who in many cases grew up seeing themselves as victims, partly because of the harsh and sometimes abusive lives they encountered. They feel anger and frustration about their situation and their place in society, which becomes overwhelming, and in turn they become aggressive and disruptive.

As part of my charitable work, I once accompanied 100 children from disadvantaged backgrounds with some of their parents to Euro Disney. A 10 year-old Caribbean boy did not listen to what his mother and others told him about jumping over a barrier on a wet marble floor. Not surprisingly, he fell with a hard thump and hit his head. Instead of his mother rushing to comfort him, as you might have expected her to do, she violently kicked him while he lay on the floor injured. Eventually, after the doctor arrived and things calmed down, she had to be persuaded to go into the ambulance with her son but not before she broke down and, in between her sobs, she cried for help. She explained that she was on her own, that her son had been excluded time and again from school and that she could no longer cope because he would not listen to her. Goodness knows what she did behind closed doors.

They were both victims of circumstances. Family life is tough for many but for that family there was a happy ending. They were counselled by trained charity project workers who put the family back together again and helped them to heal. That boy’s behaviour changed in school.

These are some of the types of children that are being excluded from schools. They need to be dealt with by staff who have been properly trained by trained play therapists, who know how to deal with damaged children, and to be shown love, understanding and—yes—discipline too but not exclusion and rejection, which only cause long-term damage way into adulthood.

I welcome the fact that the Government have decided to retain exclusion appeals panels. However, the decision to strip them of the power to order reinstatement of a pupil decreases their ability to hold a school to account. Many believe that appeals panels with powers of reinstatement represent a vital safeguard against miscarriages of justice and offer a chance for parents’ voices to be heard.

As so eloquently stated by my noble friend Lady Walmsley, despite claims from the Government that the reinstatement of pupils subsequently undermines the authority of teachers, evidence shows that only 2 per cent of exclusions are overturned and that approximately 90 per cent of exclusions are simply not brought before appeals panels, highlighting that the situation is not widespread.

We heard the case of our famous Lewis Hamilton. Goodness knows what would have happened if his appeal had not been successful and he had not been reinstated in school. We would not have seen the brilliance of that champion and have felt that pride to be British.

It is crucial that teachers are properly held to account on exclusion decisions, particularly given the massive impact that those decisions can have on a child’s future. Therefore, I believe that the Government should allow appeals panels to reinstate excluded pupils in schools if an appeal is successful, and that the Bill should be amended accordingly.

My Lords, I apologise to the Committee for arriving late. Sitting on the M11 was not the best place to be; I would rather have been with all of your Lordships. I wanted to ask a series of questions of the Minister. I regret missing the speech of the noble Baroness, Lady Walmsley, because I always enjoy her speeches on behalf of children. We have just heard that disruptive children are challenged children; they are not very often evil children. However, they can be very difficult. From my time as a director of social services and an assistant director looking after assessment centres where some of the most dangerous and difficult children are contained, I know that there are children who cannot be on the school floor. Those children who destroy classes for teachers and other pupils should not be in school. But those are not the children we are talking about. We do not need to change the legislation for them, and we do not have to change the legislation to make it successful.

One of the points that I was going to make was made eloquently by the noble Lord; that is, in good schools, the work is done beforehand, with the child, with the family and with the involvement of the local community. In my local primary school up in Norfolk, I know that things get done beforehand.

There is of course a great lack of services for some of these children. We know that teachers are crying out for good psychiatric support, psychological assessment and therapeutic support. Those are the areas where we should look if we want to provide for the next generation. However, what concerned me when I was looking through the legislation, apart from its fairness, was how decisions would be made across the country. The Government are setting up a range of new sorts of schools which will be settling their ways of working. What will the criteria for exclusion be? Will the powerful head set the criteria? How will we therefore ensure consistency? Will a child be able to move districts and find that their behaviour gets them excluded in one area but not in another? How will we ensure consistency? If Ofsted will not be inspecting all schools, how will we achieve that balance from one area to another, as we can at the moment?

How will we ensure that an assessment is made by those responsible for children’s education and welfare to understand the circumstances leading to the problem? Who will carry out that assessment across the country? Most of all, what will happen to the children thereafter? We know that some will go to a referral unit. I was a social worker on the ground, if you like, in the days when my kids went off to the sin bin, as they called it. I am not against special provision if it is properly put together, but if it is a constant stream of children moving in and out, with some children not moving at all, I should like to be clear about the basis on which the children are being put together. What worries me most is that the heads of those special units can also exclude children. I am sure that the noble Earl, Lord Listowel, will express more than anxiety about what happens to children who will often have been in care and are showing difficult behaviour, for all the reasons we know.

I did not want to make a long speech. I simply wanted to ask that series of questions to get a clear picture of how this is going to work by the time we get to Report stage.

My Lords, my name is associated with Amendment 41, which adds a provision to,

“direct that the pupil be reinstated”.

Much has already been said and I shall try to not repeat it and to be brief. My real concern is that we are talking about relatively small numbers of children with regard to reinstatement. There surely cannot be an argument that it adds to the bureaucracy. The Government clearly want to reduce the burdens on schools and heads. I cannot see the logic of why we are removing opportunities for appeal and reinstatement. That is why I support Amendment 41 and all that I have heard.

This is what concerns me most. I very much agree with what the noble Lord, Lord Storey, said about the processes for ensuring that we look after the needs of each child—educational, social, cultural and emotional—as part of a process of trying to avoid getting to the point of exclusion. That is an indication of what schools do, and they did it so successfully in the case of the school of the noble Lord, Lord Storey, that there was no exclusion. There are other schools like that and we are not talking about a problem that will wreck the school system if reinstatement occurs, especially as it occurs so infrequently.

What I am worried about is the labelling of groups of young people who are to be excluded. An important part of the process is the management of moves from one school to another and involves all the groups to which we have referred in this debate—those with special educational needs and poor backgrounds, black and ethnic-minority children, looked-after children and those who are in receipt of free school meals. They are the most vulnerable children. In the process that leads to exclusion, even if appeal is reached, it is those who have the power and who have already labelled these young people who still call the shots. Even when reinstatement takes place, we have already accepted that it is not necessarily in the best interests of that child to go back to the school from which he or she has been excluded. However, the inclusion of a natural justice element that demonstrates that fairness has occurred and that exclusion is not justified is an important part of our natural justice process, and we should ensure that we retain it.

It is important to get answers to some of the questions that have been asked. We need the information that would justify preventing the possibility of reinstatement. No basis for that argument has been put forward, and perhaps the Minister can provide the evidence that would justify the Government’s proposal and improve the processes.

My Lords, having listened to the arguments I have a great deal of sympathy with all these amendments. As noble Lords have already heard, the National Governors’ Association is broadly sympathetic. It has been stressed that we are talking about thoroughly disadvantaged children, the majority from the SEND group. The fact that it is a relatively small number has been drawn to our attention. I put my name to Amendment 43; I did not speak to it because the noble Lord, Lord Storey, had played out exactly what it said when we discussed it last week. That spells out all the areas that need to be gone through, particularly that the child concerned is able to understand the information that they are given. Combining that with the fact that there is a pilot scheme around the country, if it is ultimately decided via the process in the Bill that that is not the best place for the child, the cost of placing them in another school must be borne by the school itself. That is possibly how to meet that objective. We are talking about a small number of children who are pretty much all disadvantaged anyhow. It should be for the school with the right training and up-skilling of teachers to get it right in most cases, but that will not be appropriate in every case. Let us look at this alternative, and see whether there is an answer there.

I share the starting assumptions for this debate of the noble Baroness, Lady Morris, but I would be horrified if the Bill tried to make out that head teachers are always right. It clearly does not. The provision for a head teacher and governing body to be required to think again if a review panel found their decision to be wrong is a powerful way of ensuring that people are held to account.

The noble Baroness, Lady Hughes of Stretford, said earlier that this Bill sets a bad example to our children. I wholeheartedly disagree with that. To put somebody in a situation where they have to review their decision, and perhaps be confident and strong enough to say that their initial decision was wrong and they are happy to now reverse it, is a much better way of ensuring a proper process than somebody being forced to change their mind.

First, would the noble Baroness not agree that, in that situation, most of us would expect an independent arbitration of that decision? Secondly, does she think that it is right that, in the event that the governing body thinks again and decides to stick with its original decision, which is thought to be unreasonable, it can then pay its way out of that situation instead of having to give the child redress and accept the child back into school? Is that a good example of what we should be showing children?

It is right that we reach decisions based on responsibility and that the head teacher and the governing body should be able to decide what is right for their school. If they are clear, for very clear reasons that they believe in, about what they feel is the right future for that child, they should be able to decide that and put in place the necessary new arrangements for that child.

I concur with the remarks that the noble Baroness, Lady Howe, made about piloting the new arrangements. Schools being responsible for the education of children whom they have decided they can no longer take care of in their own school is an important new provision, and one that I would certainly support.

Like the noble Lord, Lord Morris, I, too, am a member of the Joint Committee on Human Rights. As has been said several times today, the committee reviewed this part of the Bill carefully and reported on it in detail. It is worth me highlighting the fact that the committee divided on this matter. At that time, I abstained—I did not vote with the committee, because at the time I was not persuaded by the legal arguments one way or the other. After the committee, I looked again at the Bill when preparing for Second Reading, and the conclusion that I came to was that the reason why I had not been persuaded by the legal arguments either way was because this is an issue of principle. It is right that people in charge of schools—head teachers and governing bodies—should be able to make decisions for themselves. Obviously, there needs to be a review process, which this proposal provides for, but I want to see us having a system that is based on responsibility rather than people simply being able to exercise rights. For that reason, I do not support the amendments and I support the Bill as it is drafted.

My Lords, I am hopeful that my noble friend will answer the question that I asked him at Second Reading on the statistics behind this. I think that he quoted a figure of 600 pupils a year being reinstated. For the average secondary school, that is one every 10 years. What proportion of them are children who, it is accepted by everybody, have actually committed the sort of crimes that must mean their exclusion from school, such as serious bullying or drugs or bringing knives in? I am aware that a case was mentioned in the Sun a few years ago, but are there more than that? Why are we unbalancing the scales of justice to deal with such a tiny and infrequent problem?

My noble friend has already outlined the right approach, which is to make schools responsible for the future of the kids they choose to exclude, because most exclusions are due to problems with the school, not the kids. The example that I would choose is St George’s in Maida Vale. When I first got interested in schooling it was unbelievably awful, with children running around corridors and abusing and hitting teachers. There was a total paucity of education going on. It was the school, as noble Lords will remember, where the headmaster was murdered at the gates. Last year, it received grade 1 from Ofsted, with the same intake and no exclusions. Nothing has changed with the kids, but everything has changed with the school. That is what we should bear in mind when we think of exclusion as a punishment following something done by the kid, rather than as something caused by other people that is being demonstrated in what the kid is doing.

My Lords, I remember sitting in a school classroom in a secondary school that is five minutes’ walk from your Lordships' House and seeing one boy disrupt the whole class and the poor teacher clearly at the end of her tether at the end of the period. The boy moved to a different seat as soon as she turned her back, and it was a great joke, but it clearly caused her a lot of anxiety.

This is a very complex question, as this debate has shown. Further to what the noble Baroness, Lady Howarth, said, in my experience many looked-after children have families who are not working well before they are taken into care. However, after that, the key stepping stone into care is their exclusion from school, which puts all the additional pressure on the family that the noble Baroness, Lady Benjamin, referred to. Excluding a child is a very grave step to take without the right means to ensure that the child goes somewhere appropriate, where they will get the support that they need.

I look forward to the Minister’s reply. Perhaps between now and Report, he might consider convening a meeting for Members of your Lordships’ House and secondary school heads who deal with these problems regularly. We can then get some insight into their experience. I would certainly find that helpful, but I can do it for myself. Other noble Lords might also find it helpful. We are dealing not only with this question but with the issues of detention and behaviour more generally. Therefore, perhaps a meeting with a few head teachers, particularly secondary school heads, would be useful in our deliberations on these matters.

My Lords, my noble friend Lord Storey spoke for us all when he said that we all agree that exclusion should be the end of the process. We have debated this point many times. I state again that that is absolutely the Government’s position. That is why we are holding exclusion trials. We are trying to reach a point where exclusion is a far less frequent outcome for pupils and that the number who end up in this category shrinks. That is what we all want. That point was also made by the noble Lord, Lord Ouseley. I strongly agree. My noble friend Lady Walmsley set out the case for exclusion appeals to go to tribunal with her customary clarity. Other noble Lords argued in favour of retaining a right for a panel to order reinstatement.

I shall start by restating what we are proposing in this clause, which provides for independent review panels that will be responsible for hearing appeals brought by parents against the permanent exclusion of their child. The panels will have to consider permanent exclusions very carefully. They will be free to reach their own conclusions and to conduct an independent fact-finding exercise. They may then uphold the decision, recommend that the governing body reconsider its decision to take account of the panel’s findings, or quash the decision and direct the governing body to reconsider the exclusion. If the decision is quashed, the panel will have to provide the school with the reasons for its decision. At that point the governing body will have to reconsider its decision. As several noble Lords have argued, in those circumstances most governing bodies would be likely to offer to reinstate pupils.

The noble Lord, Lord Morris of Handsworth, and the noble Baroness, Lady Morris of Yardley, asked whether we assumed that the school would always be right. The answer to that question is no. If we thought that, we would not have gone for an independent review panel, as my noble friend Lady Perry pointed out. However, there may be local circumstances in which the detrimental effect on the wider school community of a pupil being reinstated means that the school decides not to do so. This, in essence, is what the whole debate boils down to, and is the root of the difference of opinion between us. As we have already discussed and will return to in more detail, in those circumstances the panel would be able to impose a financial penalty. In addition to the general safeguards associated with the independent review panel process, we are putting in place measures to protect the interests of vulnerable children, especially those with special educational needs. As we discussed earlier, parents will be able to request an SEN expert.

My noble friend Lord Lucas asked about scale. I heard my noble friend Lady Walmsley whispering but he may not have heard her. We are talking about a small number of cases. In 2008-09, there were 6,550 cases of permanent exclusion. Appeals were lodged in fewer than 10 per cent of cases. Of those appeals, around one-10th resulted in the pupil being reinstated, which is the “60 pupils” figure that we are talking about.

Noble Lords, including my noble friend, have asked why we are making changes when the numbers are so small. We do so for one simple reason: while the numbers are fortunately small, each case can create significant problems for the school, creating anxiety for pupils and undermining the position of staff. The noble Baroness, Lady Hughes of Stretford, spoke of schools being “left to their own devices”. Because of the review panel process, they would not be left to their own devices, but I am sure that she did not mean this. Her comments seemed to suggest that schools might have an agenda to exclude pupils, and I do not believe that that is true either.

I did not mean that, and I do not generally think that schools have an agenda. However, the crux of the Minister’s argument seems to be that in most of those cases where a review panel comes back to the governing body and says, “We think that this decision is wrong or flawed”—or whatever—“so reconsider”, he expected the schools to reinstate the child. What evidence does he have for that assumption?

The evidence was a point made by a noble friend. It is reasonable to think that where the process is conducted properly and the independent review panel comes back to the governing body saying, “We think that you are wrong for this, that and the other reason”—so that the governing body is confronted with that evidence and realises that others have reached a different view, or that they have made mistakes in how they have gone about it—most people will listen to what is being said to them. Obviously I do not have hard evidence because we do not have the system in place.

The noble Baroness, Lady Hughes, talked powerfully about the example of Lewis Hamilton. I understand that example. Because the numbers are so small, one ends up having anecdotal exchanges of that nature. When this was debated in another place, a letter from a chair of governors was quoted which reads:

“In February a violent incident occurred at our school and after an exhaustive investigation the Principal took the decision to permanently exclude both the pupils involved in the attack. In short, they had come into school after issuing threats on ‘Facebook’ and sought out an individual to beat up. Failing to find him, they subsequently violently assaulted another boy, leaving him with concussion and in a state of shock. The police wanted to pursue the matter further but the family of the victim were fearful of reprisals and refused to press charges. In March, an exclusion hearing took place and the Governor’s Disciplinary Committee upheld the Principal’s decision to permanently exclude both the pupils involved in carrying out the assault. The mother of one of the excluded pupils appealed and the IAP overturned our decision and directed that we should reinstate the excluded pupil … The whole school environment was deeply shocked”.

That is an anecdote, but is illustrative of the effect these decisions can have on other pupils and the school. I wanted to start the point about the exclusion trials because there may be an assumption that the Government want in some way to be gung ho or vindictive about this, or that we start from the point of view that heads are Victorian figures of authority who must never be questioned and their writ must always run. That is not our position. Our position is that there could be a small number of cases where the effect on the attitude of other pupils and staff is worth giving the school space to take that into account. The principal of Burlington Danes Academy gave evidence to the Education Select Committee in the other place, where she said:

“I am very pleased that the appeal panels have gone, having had a permanent exclusion overturned. A teacher was attacked with a knife and the child was able to come back to the school”.

Although incidents are fortunately rare, these events are not unique. Schools have to be safe environments where pupils can learn. To achieve this, as we have already discussed, schools need to be able to manage behaviour, and heads and governing bodies need to know that they can go about that with confidence.

I turn to the specific amendments on the First-tier Tribunal and the amendment about giving panels the power to reinstate. Clearly, requiring all cases to be taken to the First-tier Tribunal with a power to order reinstatement would defeat the purpose of Clause 4. Our proposals reform the current arrangements for exclusion appeal panels, remedying what we consider to be a weakness in relation to the power to force reinstatement. We believe that the new review panels will ensure quick resolution, which is in the interests of all parties.

I think that there was a question about the timing. We believe that the panel will have to meet and consider a case no later than 15 school days after the parent requests the review.

I was grateful to my noble friend Lord Storey for speaking to his amendment, which addresses an important issue about the amount of adjustment to a school’s budget that an independent review panel can set. Again, there are balances to be struck in wanting any financial penalty to be sufficiently high that the governing body would want to reflect seriously upon it. However, I understand my noble friend’s concern that the adjustment should take account of the size of the school and its total budget, as well as his point about a flat-rate penalty. Therefore, although there are arguments in favour of such a scheme because of its simplicity, I am happy to accept the principle behind his amendment and say that, when consulting schools and local authorities later this year on the new arrangements, we will include the issue of whether the penalty should take account of the size of schools—for example, having different penalties for primary and secondary schools.

Will the noble Lord clarify a minor matter of logic? If he is saying that the review panel has the right to fine a school if the school does not go along with it, how can it be in the interests of any school to have its budget reduced when it is doing what it thinks is the right thing? Whatever we do, that seems to be about as absurd an idea as you could dream up. Who would suffer from having less money? Presumably, the school would buy fewer text-books or less of this and less of that. To me at least, none of this makes any sense. Why the Government have gone down this path, I have not the slightest idea. I have worked very hard to follow this issue since Second Reading but the fine business makes no sense to me whatever.

My Lords, the purpose is to compensate the local authority for the additional costs of the services that it would then have to pick up because the school was no longer providing them. That is the benefit.

We have heard important points raised about the Joint Committee on Human Rights and I shall make a couple of points about that. The JCHR set out its views on the compatibility of Clause 4 with convention rights. We disagree with the view that the proposal to establish review panels is incompatible with Article 6 of the European Convention on Human Rights. Our central legal argument is that the existing statutory framework around exclusion and educational provision for children who are excluded, whether on a fixed-term basis or permanently, is not determinative of a civil right, so Article 6 does not apply. In all the Strasbourg cases where civil rights have been found to engage Article 6, the civil right in question must have a basis in the domestic law of the state concerned. There is no domestic law right in the UK which guarantees the right to be educated in a specific institution. The right to an education, which is a right guaranteed at Article 2 of Protocol 1 of the convention, is not a guarantee of education at or by a particular institution. Article 13 of the convention requires that everyone whose convention rights and freedoms are violated shall have an effective remedy. As no convention rights are at issue here, we are clear that Article 13 is not engaged. We will shortly set out these arguments in more detail in a response to the Joint Committee.

I was asked about the consistency of school rules and the criteria for exclusion. The guidance is clear that a decision to exclude should be taken only in response to serious breaches of the school’s behaviour policy and if allowing the pupil to remain in school would seriously harm the education or welfare of the pupil or others in the school. The guidance is also clear that the head teacher should consider all the evidence, taking account of the school’s equal opportunities policies and, where applicable, equality legislation. We will continue to collect data on exclusions, which include exclusions by SEN and by ethnic group.

I was asked some specific questions, particularly by the noble Baroness, Lady Howarth. If I may, I will write to her and set out a proper and detailed response.

I have explained why the Government believe that, in the rare cases where they think it appropriate, schools should, following careful consideration, be able to insist that their decision to exclude should stand, despite the findings of a review panel; and how a financial penalty would then be payable. Over the longer term, it is the exclusion trials, which we discussed earlier, where schools retain responsibility for excluded pupils, which offer us a new way forward for encouraging early intervention and, we all hope, reducing exclusion. In the light of this explanation, I hope that my noble friend Lady Walmsley may feel able to withdraw her amendment.

May I ask a couple of questions of my noble friend? First, he referred throughout to permanent exclusion. The word “permanent” does not seem to appear in the text of the legislation. The direction was given to the Secretary of State in setting out the regulations, leaving it open to him to decide what sort of an exclusion the panel might make a judgment on. I assume there are important administrative reasons to minimise the appeals as well as practical ones. If it is an exclusion for a week or a fortnight, it will be over before the appeal is heard. For permanent exclusion, that is a different matter. Secondly, I would like to ask the question the noble Earl, Lord Listowel, was expected to ask and did not: what is to become of pupils excluded from a PRU, particularly if there is only one PRU available in an area? Thirdly, I am puzzled not to have received representations—I may be unique in this—from the head teachers’ organisations and I wondered whether they had expressed a view.

Before the Minister replies to those questions, perhaps it might be helpful to ask another question for information. How do the numbers of exclusions break down between primary schools and secondary schools? He may already have mentioned that but I would be grateful for that information.

On that specific point, I do not have those figures in my head and I will try to find them and send them to the noble Earl. In response to my noble friend’s first question, the new arrangements are intended to apply to permanent exclusions. So far as his other points are concerned—again, they are generally not in the Bill—in terms of the way forward with the exclusion trials and with a point that we are trying to take forward and which we will come to later on about improving the quality of alternative provision available, the responsibility for a child in the situation he describes is unchanged and remains with the local authority.

Can I press the Minister on one point, following on from the noble Lord, Lord Peston, who drew attention to the philosophical difficulty of new subsection (6)? I notice that the review panel will have the discretion to impose a fine for an adjustment in budget but it is not a requirement that the review panel would do so. I am puzzled as to how a review panel is going to decide between one case and another and on what basis. You almost then have the prospect of review panels grading the substance of their requirement that a responsible body review it according to a scale of fines. This strikes me as odd. It is in the subjunctive—that the review panel,

“may, in prescribed circumstances, order an adjustment”—

and I wonder whether the Minister would expand a little more on what the “may” represents.

It is our intention to publish guidance to cover these issues which we will be able to then share with Peers so that they can see how that is proceeding. That will address some of these issues.

My Lords, I am most grateful to the Minister for his reply and to all Members of the Committee who have taken part in this fascinating debate. I have a confession to make. I did not declare an interest at the beginning of this debate: I was once actually excluded. At the age of four, the head of my dancing class asked my mother to take me away because I was not prepared to stand in a row with all the other little girls and point my toe and wave my arms in exactly the same way as everyone else. I wanted to stand in the corner, be creative and do my own thing. I was not prepared to be a clone, so I was asked to leave. However, I remember feeling that sense of injustice because I had not been disruptive in any way; I had not been naughty; I just did not like standing in a row and doing the same as all the other little girls.

Therefore, I suppose that what we need to think about is the cause of the behaviour, and there have been many powerful speeches about the underlying factors that lead to these serious permanent exclusions. A large number of points have been made and I should like to take up a few of them. Much has been made by the Minister and my noble friend Lady Perry about the power of the independent review panel to quash the original decision and ask the school to reconsider, but what is the point of asking it to do that if there is no redress and if it continues with its wrong-headed decisions? The child actually has no right to any redress at all.

An innocent child cannot, in the current situation, be blamed for not wanting to be sent to a referral unit because only today there has been a report from, I think, Ofsted about the poor results that are frequently obtained by pupils in referral units. We must do something about the quality of alternative provision and I very much welcome what the Government are doing with the pilots that we talked about last Thursday. They have the potential very much to drive up the quality of alternative provision, and they are a very good idea.

What the Government are proposing is discriminatory because—not perhaps for the reasons suggested in the debate—we are setting up one system for children with special needs and a completely different one for children without special needs. In fact, we are taking away the current independent appeals panels and setting up something completely new to deal with only the 30 per cent of appeals that do not have any special needs connotations. That strikes me as being daft, particularly in the current financial situation. Why are we doing that? As the noble Lord, Lord Lucas, commented, we are dealing with very small numbers here. The vast majority of children behave well in school; the vast majority of cases of exclusion do not lead to an appeal; and three-quarters of the appeals are not upheld. We are talking about only 25 per cent of appeals being successful—and a very small proportion of those involve the reinstatement of a child where the school does not want it. We are talking about only 60 cases a year.

I ask the Committee: are we throwing away an important principle of natural justice for the sake of 60 cases out of 11 million children? I agree with the noble Baroness, Lady Stowell, that this is an issue of principle—but not the principle that she enunciated. It is the principle that if you have been found innocent or if the punishment has been found to be excessive, you should have a right to reinstatement, as long as other factors do not outweigh that right. We have to bear in mind—I absolutely accept this—the effect on the rest of the school. I therefore draw noble Lords’ attention to proposed new paragraph (c) in Amendment 59, which states that one of the powers of the tribunal could be to,

“decide that because of exceptional circumstances, or for some other reason, it is not practical to give a direction requiring reinstatement, but that it would otherwise have been appropriate to give such a direction”.

That gives the tribunal the opportunity to say, “This child’s case has been made. We are not convinced that the child did what the child was supposed to have done”, or, “We are not convinced that exclusion is the appropriate punishment for it. However, we accept that if this child were to go back into the school, it would cause major problems for the rest of the school community”.

There may be several thousand people involved in that community. Therefore, for the sake of their best interests, and probably those of the child concerned—who wants to go where they are not wanted?—it might be better if the child went somewhere else, even if the case has been made and it is accepted that the decision was wrong. It could well be that that “somewhere else” can better meet the needs of the child. Therefore, that part of the amendment provides a very important power, which I should like to see given to the First-tier Tribunal that I am proposing.

I thank the Minister for what he said about Amendment 47—that the Government will look at the issue of the fine in the consultation. I agree with the noble Lord, Lord Peston, that the fine does not make sense. You have just to ask yourself: who will suffer if money is taken away from a school? It will not be the child who is supposed to have misbehaved. He will have gone to some other school. It will be the children who remain in the school who will suffer if the school is fined. It really is not the sort of deterrent to schools expelling incorrectly that makes sense. I accept that reinstatement can often be difficult but I draw the Committee’s attention to proposed new paragraph (c) in Amendment 59, which would take care of that situation.

I have just one more point on the consultation over the fine. Will the Minister confirm that special schools and PRUs will also be consulted? They are often very small schools. The Minister is nodding; I thank him.

In conclusion, I ask the Committee to think about how adults would respond if, in an employment tribunal, a case had been made in favour of the employee and against the employer, finding that the response to what had happened had been disproportionate, but the employee was unable to get any redress at all. If it is wrong for adults, it is wrong for children. As has been said, children have a very strong sense of what is fair and what is not fair. A decision of this sort could turn a child totally against society. As one noble Lord rightly said, it could flip somebody who already feels disengaged or victimised—as though nobody understands them and everybody is against them, or as though they have no opportunities and are discriminated against—into becoming an extremely antisocial person. Although I accept that there are enormous difficulties in this situation, I ask the Minister to consider very carefully whether it is right to throw away a principle of natural justice in favour of doing something in only 60 cases a year out of 11 million children. It seems a disproportionate act by the Government. I hope we can have more discussions about it over the next few weeks. I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendments 38 to 59 not moved.

Clause 4 agreed.

Schedule 1 : Review of exclusions from schools in England: consequential amendments

Amendment 60

Moved by

60: Schedule 1, page 59, line 18, at end insert—

“In section 31A of that Act (consideration of adverse reports), in subsection (3)(c), for “exclusion appeal panel” substitute “exclusion review panel”.”

Amendment 60 agreed.

Schedule 1, as amended, agreed.

Clause 5 : Repeal of requirement to give notice of detention to parent: England

Amendment 61

Moved by

61: Clause 5, page 10, line 13, after “Wales” insert “or a pupil at a school in England whose parent has not consented to a same-day detention”

My Lords, I rise to speak to the amendments in the names of my noble friends Lady Walmsley and Lady Jolly. This is a very simple amendment to provide the safeguard that parents know about, and agree to, a same-day outside school-time detention being given. We recognise the benefits of same-day detention. For the child concerned, the punishment is swift and close enough to the judgment of the incident for there to be a clear link, and it is important for the school as it significantly reduces the administrative arrangements that are required if the detention cannot be taken for a day or more.

I am mindful of the evidence of Sir Alan Steer to the Commons Bill Committee. He said:

“It is nonsense to be discourteous and rude to parents with no notice detentions. You are actually exhibiting poor behaviour. It is thoroughly unreasonable and designed to annoy the parent. The vast majority of schools will not do it because it would run against their principles and how they operate”.—[Official Report, Commons, Education Bill Committee, 1/3/11; col. 51.]

I absolutely accept that the vast majority of schools would talk to parents and take the view of Sir Alan Steer but, sadly, not all would, and therefore we believe that two key issues would give serious cause for concern should no further measures be put in place.

The first is safeguarding. If children are kept in school for a detention and walk home alone without a larger group of children leaving together and without their parents’ knowledge, we argue that parents must have agreed to this delay so that they can make the necessary transport or meeting arrangements to ensure that their child travels home safely. The press has, very sadly, been full of the recent trial of Levi Bellfield over the murder of Milly Dowler. I want to make it absolutely clear that she was not detained at school but she travelled home later and via an unusual route. Parents are rightly concerned to know how their children get home and at what time so that they can be confident that they will arrive safely.

Secondly, same-day detentions cause a practical problem for rural schools. Many children can access their school only by bus or rail, and often there is only one bus that they can take home. For parents who do not have cars and are unable to collect their children, there is an equity issue about short-notice detentions.

Our amendment is very straightforward. It aims to protect children by ensuring that their parents give consent to the detention and are able to make arrangements for the child to get home safely. We do not want to be prescriptive about how that consent is made—schools will know how best to reach a parent urgently. I beg to move.

My Lords, I support Amendment 62, which very much follows on from Amendment 61 and has a similar intent to that described by the noble Baroness, Lady Brinton.

We also recognise the arguments put forward by some school leaders that punishment is more effective if it takes place nearer to the time of the original incident. Therefore, we understand that there will be occasions when same-day detention is preferable if the necessary safeguards can be built into the child’s welfare. Indeed, that is why detention at lunchtime, which we introduced in previous legislation, is a very useful additional tool. However, to be safe, we regard it as essential that parents are properly informed for same-day detention when it is intended that it should take place after school.

Therefore, our amendment, in the form of a new clause, would require schools to give parents or carers reasonable notice of detention and to obtain an acknowledgment from the parent or carer within 24 hours. Where that acknowledgement has not been received, detention would still take place, but only after the original 24 hours—the current system.

A number of concerns have been raised about Clause 5 as it stands. For example, Ambitious about Autism made a point that I hope noble Lords will take seriously, which is that you need to prepare autistic children for the disruption to their plans and routines. Therefore, short-notice detention of children with autism is not only disruptive to their life and organisation but can cause them considerable mental distress.

Secondly, even Sarah Teather, during the progress of a previous education Bill said:

“For the record, we would not be in favour of removing the period of notice. It would be totally impractical”,

as the noble Baroness, Lady Brinton, has said. Sarah Teather continued:

“In rural areas, especially on dark evenings, parents would not know what had happened to their child and would be extremely concerned. It is perfectly acceptable to give 24 hours’ notice, as it will allow parents to make other arrangements for travel … Anything else would be unacceptable”.—[Official Report, Commons, Education and Inspections Bill Committee, 10/5/06; cols. 855-56.]

Equally, we need to be aware of the needs of young carers who could be stopped from doing vital caring work at home, with no warning and no ability to make alternative arrangements. We need to be aware of the fact that some schools are not aware of the full caring roles that their pupils are carrying out when they get home, and the schools may thereby not be sensitive to some of the pressures that they are putting on the children.

The noble Baroness, Lady Brinton, has made the case about rural areas and I shall not repeat it. Unamended, the clause could disrupt the relationship between schools and parents. The NUT made a good point when it said:

“Behaviour systems and policies always work best when they are fully supported by parents. Detention without notice does nothing to bring parents on-side”.

That is also important.

Our amendment therefore helps to redress the balance. It recognises the advantages of short-notice punishment while acknowledging the need to build parents into the disciplinary equation by requiring parents to be made aware of the sanctions the school intends to take. It fosters good relations with parents while allowing them to raise any genuine and practical concerns about a child’s late journey home. In the event that it is not possible to contact the parent or carer, it should remain that the default position is 24 hours’ notice. I hope that noble Lords will see the sense in both amendments.

My Lords, I am sure that the Minister will confirm that this did not rise just out of a vacuum and that a large number of teachers and teachers’ organisations have indeed been in contact to support this piece of legislation. It is hugely important that where punishment is going to happen in schools it happens quickly in order to be effective. This legislation will not actually place a duty on schools to do this but simply provide a power to do it. Some schools could decide in their wisdom that they want nothing to do with having detentions under these circumstances. Others could decide that only certain members of staff under considerably constrained conditions may do so. Therefore, we can expect a variety of responses among schools in order to do this. However, there is absolutely no doubt that this power is needed by schools—or at least by some schools. It is part of a series of new tools for the toolbox that I am sure the Minister will agree he is trying to provide, and sends a message to teachers, pupils and parents that a lot of the misbehaviour that we have heard so much about is being combated. It is not one thing—there are other things, all of which are hugely important. They send a clear message to those people that they are going to be supported by government under these circumstances, and that teachers will not have to put up with the kind of misbehaviour that we have heard quite a lot about.

According to the thrust of the Government’s position, these decisions should be left to individual schools. We trust individual schools to make these kinds of decisions. Frankly, it is good so to trust them. Given that kind of trust, the response is always more professionalism. We do not need any more safeguards built into this. Where things are, there they should stay.

My Lords, I will briefly make three points, unless something else occurs to me as I am on my feet. First, will the Minister tell us how many schools have actually asked for this? I have listened carefully to what the last noble Lord said, but in my three years as Schools Minister no school ever asked me for this power. I would be really interested in what evidence there is for a demand for it.

Secondly, I listened to what the noble Lord said about the fact they we should trust schools and leave it to them to decide whether to use the flexibility that they are being given in this Bill. I refer back to what the noble Baroness, Lady Jones, said about schools not necessarily fully understanding the circumstances of some of their pupils’ families; her example was whether or not they have caring responsibilities. I was shocked to talk to some schools where they did not know that parents might be in prison. All sorts of things happen that families do not necessarily want to go around talking about but which affect the nature of the home environment, and would then affect whether it would be appropriate to give a detention without notice on the same day after school.

Finally, on reinforcing the discipline from the school at home, when I was given detentions at the prep and independent private schools that I went to for things like forgetting my towel or—God forbid—being cheeky and a bit mouthy, which I know would shock noble Lords, there was always a letter home that went with the detention. That was always the worst part of the punishment: your parents knew that you had been given a detention. Giving 24 hours’ notice so that your parents are informed of the detention is a really important aspect of linking up the discipline of the school with home. We know that the single most important determinant of the success of a child’s education is the involvement of their parents in that education. I strongly believe that it is really important that we ensure that that linkage through the notice is there in every school.

My Lords, I wish to follow the noble Lord, Lord Knight, because I found it extraordinarily surprising that this Government, who stand very much for working with and alongside parents and making sure that there is accountability and responsibility at home, can suggest that they would give a detention without informing parents. Having worked with the Minister, Tim Loughton, on other issues and knowing how important it is for the Government that children should be safeguarded, I find it astounding that they can suggest that children can be detained in the evening and be allowed to go home without their parents knowing and without safeguards. I expect better.

Detention is not always about discipline. I got my detention for leaving my French homework on the bus and not producing it.

My Lords, I, too, support both these amendments. There are real concerns, as we have already heard, about the proposals to remove the requirement for written notice of detention outside school hours, given the safety concerns of parents for the whereabouts of their children, particularly if their children are at risk due to family circumstances or where they live or the nature of their journey from home to school. It is essential that the school gives parents notice if their child is to remain at school outside school hours and that the child’s safety and well-being are considered and given top priority.

Many have considered this proposal to be in direct opposition to the current insistence that the parents of excluded children must account for their whereabouts in the first five days of exclusion. It is only fair that, in return, parents are kept up to date by schools on their child’s whereabouts. I therefore support the amendment to retain the requirement for written notice of detention outside school hours.

My Lords, I rise very briefly to ask the Minister a specific question, which arose from the comments made by the noble Lord, Lord Lucas, without any support or evidence at all to back up his claims. We should not have any legislation on the statute book unless it is actually going to do something—to improve or rectify a situation. The Education Act 2002 gave schools two powers. One was the right to earned autonomy and the other was the power to innovate. I am sure the Minister’s officials could tell him, or her, immediately how many schools since 2002 have applied under those powers to innovate to have detentions on the same day.

My Lords, as we have all agreed, improving standards of behaviour in our schools is of great importance. We know that having a clear behaviour policy, which is consistently applied and includes positive incentives as well as sanctions, is essential to ensure good behaviour. This clause is one measure that the Government are taking to help schools to achieve this. Its intention is to allow teachers and head teachers to use detention in a way that is appropriate to the circumstances of their school and individual pupils to maintain a safe and orderly school environment.

My noble friends Lady Brinton and Lady Benjamin and other noble Lords have raised concerns about the safeguards, but safeguards are already in place to make sure that parents know what to expect with regard to detention outside school hours. Section 89 of the Education and Inspections Act 2006 requires that head teachers develop a behaviour policy in line with the principles drawn up by the governing body, and publicise it to parents annually. This policy must include all the penalties that the school uses to maintain discipline, including whether the school issues detention outside school hours.

The amendments in this group seek to place additional requirements on schools in relation to contacting parents when they wish to give a detention. I understand the intention behind the amendments. My noble friend and the noble Baroness, Lady Jones, rightly consider that courtesy to parents and issues of child safety are of the utmost importance. Of course, I agree with them about that. However, noble Lords asked where these requests had come from. They may have read the briefing by the Association of School and College Leaders, which read:

“We welcome removal of the requirement to give parents 24 hours notice of detentions. We note that at second reading there was concern that this power could be abused. School leaders are well aware of the position of child carers, as well as other concerns such as children walking home alone in the dark and in the vast majority of cases will continue to give 24 hours’ notice. We are confident that schools can and should be trusted with this additional discretion”.

We have had meetings with school heads who support that to the hilt.

I believe that teachers and head teachers will consider the circumstances of their schools and pupils in setting their policies on detention so that they can promote good discipline but also safeguard children’s welfare and support good relationships with parents. However, I shall also set out the existing legal safeguards that protect children’s welfare if they are given a detention. Section 91 of the Education and Inspections Act 2006 requires that disciplinary penalties must be reasonable in all circumstances. When considering whether a disciplinary penalty is reasonable, teachers must take account of the special circumstances of the pupil, including—but not limited to—their age and special educational needs, or any disability they may have. That would include the concerns raised by the noble Baroness, Lady Jones, about autistic children and their very special needs.

The Section 91 requirement applies when issuing detention outside school hours. This means that a detention will be lawful only if a teacher acts reasonably given the circumstances, including in relation to giving notice to parents. My noble friend Lord Lingfield raised the fact that this is a power, not a duty, that schools will have.

Do those legal safeguards mean that the noble Baroness’s expectation is that parents’ recourse would be to the courts—and the expense of going to court—if, for whatever reason, they did not feel that they had been given notice that their child would not be at the school gates to be picked up and that had caused them to worry? Is there another third party to whom they could appeal?

The noble Lord raises a valid point. There will be a school complaints procedure to which parents can normally turn in the first instance. Given the special circumstances in which this might arise, one would have thought that that would be the first line of action.

I also understand noble Lords’ concerns regarding the safety of children when travelling home from school, particularly in rural areas. I should reassure noble Lords that, in addition to the safeguards I have just described, Section 92(5) of the Education and Inspections Act 2006 makes it clear that, when considering an out-of-hours detention, teachers must consider whether suitable travel arrangements can be made via pupils’ parents. For some rural schools, out-of-hours detentions may never be appropriate, whatever the notice period, as has already been raised in discussion. I believe that head teachers will make sensible decisions in their individual circumstances.

In our debate on Tuesday, the noble Lord, Lord Sutherland, described some of the difficulties that schools can face in working with a minority of parents. There is a risk that requiring parents to give consent for a same-day detention or to confirm that they are aware of it could, in a small number of cases, allow parents to obstruct appropriate disciplinary penalties. I should reassure noble Lords that the department has released new concise guidance on teachers’ legal powers to discipline. This guidance makes it clear that the school must act reasonably when imposing a detention, as with any disciplinary penalty. In addition, when deciding the timing, the teacher should consider whether suitable travel arrangements can be made by the parent for the pupil. I believe we can trust teachers to consider this and act appropriately.

In reply to the noble Lord, Lord Knight of Weymouth, a study carried out for the Department for Education found that teachers reported a lack of support from parents, describing a “them versus us” mentality. That same study found that teachers felt that the removal of the requirement for 24 hours’ notice of detention would empower them. I can send the noble Lord and the noble Baroness, Lady Howarth, a copy of that study. We stress that the vast majority of parents would be likely to be supportive if they could see that the detention was in the interests of their children. However, this measure is to take account of cases where that might not be seen as an appropriate action.

Is it not the case that the amendment asks for parents to be given notice? It does not require consent. I completely understand that there may be problems over consent if the relationship between home and school is not great. The important thing is that parents know that their child will not get off the bus.

Parents do not necessarily answer their phone. The fact that one has sent a letter home with the child does not necessarily mean that the child has passed it on—I can remember that being the case when I was a teacher. In some cases it was difficult to get hold of the parents to ensure that the message had been sent through. I come back to the point that, were there a difficulty at home, teachers and head teachers would be aware that it might not be an appropriate action to take. It would be taken only where it was deemed to be the right thing to do.

Is the Minister aware that quite often teachers and heads are not aware that there might be a problem at home? My noble friend gave the example of young carers. Young carers often do not wish to be known as young carers. I find “appropriate” and “reasonable” quite difficult to grasp in these circumstances.

In the case of pupils who were young carers, one hopes that that would be known by the schools, although I grant you that it might not be. Once again, we come back to the fact that detentions without 24 hours’ notice would occur in very exceptional circumstances. Teachers would ensure with the pupils concerned that there was no reason for it to be inappropriate for them to be detained in those circumstances. Teachers are already legally required to take appropriate and reasonable action in giving an out-an-hours detention and to consider all the relevant circumstances. I do not believe for one moment that they would be gung-ho. We should listen to head teachers when they tell us that this measure will help them.

My noble friend Lord Willis asked how many schools applied for a power to innovate. The answer is probably none, because few schools have ever applied to use the power for any reason. It would simply be something that they had it in their power to do if the need arose.

I am grateful to the Minister for responding so quickly and to the Box for finding the response. She makes exactly the point that I want to make; namely, that these powers already exist. You do not need additional legislation to have an impact here. If a school wanted the power, it could simply apply to the Secretary of State under the 2002 legislation and the Secretary of State would gladly give it to them.

My Lords, there is currently a ban on giving a detention without 24 hours’ notice. That is why we are legislating here to enable schools to have the additional power if they wish to use it in very special circumstances.

I apologise if I am being incredibly stupid, but the 2002 Act gives the Secretary of State the right to grant to any school in England earned autonomy and the power to innovate. If you have the power to innovate, surely that takes precedence over any legislation, otherwise—I say with due respect—the 2002 Act becomes meaningless.

With due respect to my noble friend, I think that it would be quite a time-consuming process for each school to apply to the Secretary of State for a power to innovate for a circumstance which would be likely to arise very seldom and which would need immediate action. Processes for expecting in advance to be able to do this are not practical.

I am sorry to take up the Committee’s time but this is important. It would not be done on every occasion. As a school, you apply for the power to innovate and you put it into your polices that you have the power to give a detention without notice—end of story. Why is new legislation needed?

Each school would have to apply individually for that power to innovate. We are setting in legislation the fact that each school would not need to apply individually to the Secretary of State; they would have it as an additional power which they could use on the rare occasions that the school deemed that it was an appropriate way of dealing with a pupil’s behaviour.

My Lords, the noble Lord is right. The power to innovate gives schools the right to ask whether they can be covered by this piece of legislation. You do that in advance; you do not do it because you want to keep a child in that night. I support what the noble Lord is saying, which is that the Government are making the case that only a small number of schools will use this power. If it is so important to them, looking across the array of legal powers they want to take themselves, if they think the most important thing is that they can keep children in on the same day, the power is there to do it. The noble Lord is absolutely right. The point is that this legislation leaves so many loopholes and so many risks of children not being safely looked after. We do not need to take that risk. If a school thinks it is important to them, they can apply for the power to innovate in advance. My understanding is that they have the power for five years.

I am the Minister who is in receipt of applications for powers to innovate. I have not been overwhelmed over the last year and a half by applications for powers to innovate. It may be there but the point is that for it to be there it is a more complicated process than it ought to be. Every school would have to apply individually. They apply to officials and officials put up submissions and Ministers decide and opine and then the power to innovate, like Zeus, is given. It is time-limited.

As a way of dealing with the issue, if one accepts that this is a permissive power, as it clearly is, and if you say to schools that all those that might want to use this power have to go through the rather cumbersome and protracted process of applying for a power to innovate, no one will go through the process of applying. They will say that this has been made difficult for them, whereas something that is simple, which gives them the opportunity and which applies to all—to choose either to use or not to use—with safeguards in place, seems a more rational way than making every school try individually.

Could I respectfully say to the Minister that this is not about powers and process, it is about message. If the message you want to convey is that you want to support schools and head teachers in whatever powers they wish, that is a message that will go out. But it will not be generally helpful in forging relationships between families, communities, parents and schools or indeed between children and their teachers. That is what it is about. It is about ethos and message. A better message is that these powers do exist. I am a strong believer in discipline in schools. Children learn much better if you have discipline. You need these sorts of structures in schools. But it is unhelpful to put into statute something which every speaker in this Room, even those who think we should do something, sees as unsafe and as poor communication with parents. I hope the Government will re-think how they convey that message of support to teachers without putting children into danger.

Before the noble Baroness sits down, I want to be clear what she is saying. Is she saying it is okay to have short-notice detention and not to tell the parents, because that seems to be the message? That raises all the concerns that people around the Room have raised. By all means have short-notice detention but make sure the parents are told. It seems she is saying it is not necessary. All our amendment is doing is to make sure the parents are told. That is a safeguard—the check and balance that is needed. I have not heard a convincing case why we should not insist that parents are told.

We are talking here about a detention which might be as short as 10, 15 or 20 minutes after school. In that case there would not be time to get hold of most parents to tell them their child was being detained. If all the safeguards were in place to indicate that there would be no danger or damage to that pupil in detaining them, it might be a short, sharp shock that would just rectify a situation that was getting out of control. It is simply an additional power that the school would have, without all the delays. It will build up into a much bigger issue if you then wait and send a letter back to the parents or try to contact them. The whole thing might escalate into a much bigger punishment than giving a brief and immediate punishment on the spot to a young person who had committed some misdemeanour where all the safeguards were in place to make sure that that child would not be at risk for being kept back for a few minutes at the end of school.

We are obviously taking account of transport and all the other circumstances where this type of detention would not be appropriate. We are doing so in response to head teachers, who have indicated that they would welcome this power. As the noble Baroness, Lady Howarth, said, this is, in a way, a message about something that could be available to them should they need it in very specific circumstances and when appropriate with all the safeguards surrounding it.

We hear the strength of feeling around the Room about this measure but I hope that noble Lords will see that it is a very measured proposal. Teachers would not be inclined to abuse the system but it could be extremely helpful in some circumstances to give an immediate punishment. It would show a young person that they had stepped out of line and that such a punishment was appropriate.

With that explanation, I hope that the noble Baroness will feel able to withdraw the amendment. However, we certainly have taken on board the debate on this matter in Committee and the strength of feeling that it has aroused.

My Lords, we have had two debates on this amendment. The latter one that has emerged about the power to innovate and accessibility to current legislation for schools has been interesting. I urge the Minister to reconsider whether the existing law enables the Government to achieve what they want to happen. Should it not do so, I shall want to come back to some of the comments made by other noble Lords today.

There are key safeguarding issues relating to short-notice detention outside school time. That is the fundamental concern behind both these amendments. It is a question of trust in teachers, as espoused by the Ministers, or safeguarding children. Frankly, I think that the balance there always has to be in favour of children. I absolutely take the point made by the noble Baroness, Lady Jones of Whitchurch, and others about children who act as carers. Children may also have non-caring roles that they need to fulfil or other commitments outside school with classes to go to where their non-attendance would cause problems. There are many things that schools do not know about where a short-notice detention out of school time could cause very serious implications for a child.

Parental support is absolutely vital, as many noble Lords have commented. Since the beginning of Second Reading, we have talked repeatedly about partnership between parents and schools. Parents’ support for outside-school-time detention must be a priority, not least because that gives them the chance to make alternative arrangements and it also gives them a chance to say to the school, “In this instance, it is not appropriate to do it straight away”.

I have to take issue with my noble friend Lord Lingfield about this being a new tool in the toolbox. It is a very weighty tool and an absolute sledgehammer to crack a nut. The Minister cited Section 91 of the Education and Inspections Act 2006, as well as another Act, and was confident that all the legislation was in place and that all we were being asked was to trust teachers. However, this amendment and Amendment 62 set out a simple and clear way of making it absolutely unavoidable for a school to contact a parent and get a response. My noble friend Lady Benjamin talked about the importance of a letter going to the child’s home. She is right that in this day and age there are much faster ways of contacting parents, including by text and mobile telephone. Even five or six years ago, as a parent I got messages from school as my eldest had accidents at school and was required to be taken to A&E. If something is that urgent, frankly the school can make contact. If the school is required to contact parents, they must do so.

I come to the final point about a nine year-old at primary school walking home late in November without their parents’ knowledge. In the main, most schools would not want that to happen, but there are occasions when it might. That is why I come back to safeguarding. If it is safeguarding versus trust, safeguarding must come first.

That simply would not happen. It would not be the case that a nine year-old was kept back late in school and allowed to walk home on their own under these circumstances. That is not how this measure is either intended or framed.

Whether it is a nine year-old, an 11 year-old or a 12 year-old, the same safeguarding issues are still absolutely there and valid. I am afraid that the problem with the plethora of legislation that was quoted earlier is that it is too easy to miss. There were comments earlier about the message that the Bill sends out about this. There is a clear message from both of these amendments that children’s safeguarding comes first, which is why parents should be notified.

I hope that Ministers will take into account much of the discussion that we have had today, and will able to come back at later stages of the Bill. For now, however, I beg leave to withdraw the amendment.

Amendment 61 withdrawn.

Clause 5 agreed.

Amendment 62 not moved.

Clause 6: Repeal of duty to enter into behaviour and attendance partnership

Amendment 63

Moved by

63: Clause 6, page 10, line 15, leave out “Section 248” and insert “Section 248(3), (4) and (6)(c)”

My Lords, when we talked in a previous debate about the Bill’s approach of removing what the Government see as burdens from schools, I said that I and my colleagues had approached this issue not simply by arguing, as we go through these detailed debates, that everything that the Government want to take out should be put back. I hope that the Minister can see that we have been selective and judicious with our amendments in this regard.

Like the duty to co-operate, Clause 6 would repeal a duty on secondary schools to co-operate with other schools to promote good behaviour, discipline and attendance, and also to make an annual report to the Children’s Trust on how they have done so. I move the amendment only because, like the duty to co-operate, we think that the repeal of this particular duty on behaviour and attendance partnerships will have such a negative effect on some of the things that the Government actually say that they want to achieve.

The amendment would reinstate the duty to enter into behaviour and attendance partnerships but remove the duty to produce an annual report. We have no difficulty supporting that part, but the duty to co-operate with other schools in partnerships to tackle behaviour, discipline and attendance are very important, not least because of the debate we had not long ago on exclusions and that entire discussion about behaviour and discipline. Everybody in that debate, including the Minister, said that we want exclusions to be a last resort. We want schools to work to prevent exclusions by having a strong, robust but comprehensive approach to inculcating good behaviour and dealing with discipline problems in a creative way so that they do not have to exclude pupils. That is what behaviour and attendance partnerships are all about.

They came into being following Sir Alan Steer’s review of behaviour, in which he said:

“It remains my firm view that all secondary schools—including new and existing Academies, Foundation schools and Pupil Referral units—should participate in behaviour partnerships”.

I know that the Minister may well come back and say, “Look, we think partnerships are a good idea but we want schools to participate in them voluntarily. We don’t think this duty is a good idea because, to be meaningful, a partnership is best when everybody is committed and enters into partnership voluntarily”.

What Alan Steer’s review pointed to was the fact that good collaboration between schools over these issues is often prevented by what are perceived, by other schools in the area, to be unfair practices by a minority of schools over such things as admissions and exclusions. The resentment that that engenders because of some schools behaving unfairly and not collaborating with others means that the whole approach to partnership is damaged and fragmented, and that it becomes very difficult to get partnerships going. He also said that such partnerships sometimes need a helping hand to become established. They need the kind of momentum that a duty on all schools equally to participate can create.

This clause, among others, is in real danger of fragmenting that approach among schools in an area. If the duty to participate in partnerships is repealed, a lot of good work that has been done under the umbrella of those partnerships will be jeopardised. What partnerships enable schools to do, as well as to get support from each other on particular approaches, is often very practical. For instance, they can pool resources to employ specialist staff—maybe a psychiatric social worker or a parent support worker—that individual schools, particularly small ones, could not afford on their own. Similarly, on exclusions, that kind of collaboration will allow schools to discuss individual pupils with each other and perhaps set in train some managed moves when it is clear that, for a variety of reasons, a child cannot stay in one school but can, through the co-operation that has taken place in the partnership, be accepted by another school in that partnership. That school would have full knowledge of what the difficulties are because they would have been discussed openly and transparently. There could also be some reciprocity between those two schools in that shift from one school to the other, to help the receiving school take that child. Given the issues that we discussed earlier and the ideal that we all share of exclusions being a last resort, that is surely a good thing.

I am also concerned that the removal of the duty could reduce parents’ ability to get access to support for a child with behavioural problems. Those resources just will not be available to individual schools in the same way. There is a danger of cutting parents out of that system. I shall not detain the Committee for very long on this, but not because it is not important—it is very important. The issues are very clear, particularly when we put this in the context of some of the other measures proposed in the Bill. I shall be interested to hear the Minister’s response. This is not a negative duty on schools; it is a positive duty that promotes collaboration and partnership over some of the most difficult behavioural and disciplinary issues that schools must deal with. It means that they are not on their own in dealing with them and that they can develop local responses in an area across a group of schools, which is very positive.

My Lords, briefly, I support what the noble Baroness, Lady Hughes of Stretford, has just said. It seems eminently reasonable to support such a mode of working—of sharing the burden of the most difficult children among a group of schools. From speaking to head teachers, I have not experienced that model. However, I have spoken to the head teacher who was responsible for something called the Greater Manchester Challenge in the Greater Manchester area. It gathered together teachers and head teachers in Manchester to support each other. I understand that there is something similar in Greater London. This, perhaps, was one of the strengths of the previous Government. One of the good things that they brought forward was a mode of encouraging heads to work together to produce better outcomes for children.

One sees that the new coalition Government are moving in the opposite direction. There is a lot that we will support in that. Perhaps we can all support greater autonomy and respect for individual professionals, but I would be very sad if, in the process of that move, we went from one extreme to another and we lost some of the good things that came out in the years of work that the previous Government put in. To my mind, it would be very sad to lose that co-operation and recognition that some problems are bigger than any one school can deal with.

The Minister may say that there are new modalities in developing these sorts of collaborative approaches. I recall what his noble friend Lady Ritchie said in the previous Committee session when she expressed concern, as the person responsible within the Local Government Association for the safeguarding of children, that the academies programme has given rise to concerns about fragmentation. There is a swing in the pendulum from one extreme to another. Some really good things came out from the previous swing in the direction of collaborative working, and I should be grateful to the Minister if he can reassure the Committee—as I am sure that he will—that he recognises the importance of schools working together to deal with these issues, and say what new mechanisms he is helping to bring into place to make it work for children in the future.

I shall speak very briefly in support of the amendment because it is perhaps one of the most important that we will discuss in Committee. I know that we can return to the issue at a later stage. I very much support what my noble friend Lady Hughes said—out of all the obligations that schools have been freed from, this is probably one of the most important to discuss. My reasons for saying that are twofold. I completely accept the need for schools to be independent and I acknowledge and recognise that the Government are working to push that agenda as far as they can. Can the Minister say whether the Government also accept the need for schools to be interdependent? Does he understand the concept that sometimes schools cannot do well for their own children because they are not interdependent with other schools in the system?

If the Government accept that, I have a second question. Of all the things that schools can do, the thing that can most harm a neighbouring school is the exclusions policy. That is what makes exclusions different than a lot of other things. I am sure that the Minister and the Government fully understand that the actions of one school can make it difficult for another to raise standards. That is the powerful case for leaving there the obligation and duty to be part of the partnership. It is, first, about the interdependency of schools as well as the independence and, secondly, it is about understanding that the actions of one school can be very detrimental to the ability of the other to raise standards. Will the Minister reflect on that in her response?

My Lords, I understand and have much sympathy with the intention of the amendment to promote partnership working between schools to improve behaviour and to remove bureaucratic burdens, and with the views put forward by the noble Baroness, Lady Hughes, the noble Earl, Lord Listowel, and the noble Baroness, Lady Morris. I agree that working in partnership to improve behaviour and attendance can help schools to meet the needs of their pupils. Very many schools are already doing this very effectively. We heard from Sue Bainbridge from National Strategies, who worked on behaviour in schools for the previous Government. She said:

“One really good example of partnership working is in Tower Hamlets. No one told those schools to work together; they decided to work together. They share their data now. They not only openly share data with heads and senior leadership teams, but flag up the youngsters who are causing them concern. They ask each other for help with strategies to address a problem.”

The Education Select Committee when conducting research into their report Behaviour and Discipline in Schools, published this February, observed:

“During our visit to Leicester City Council, local partners were confident that there existed an established culture of less challenged schools supporting those with greater challenges in terms of pupil behaviour. Therefore, the removal of the requirement to form BAPs [behaviour and attendance partnerships] was expected to have little impact on local partnership working”.

The fact is that Section 248 is not yet commenced. Therefore, schools that are part of a behaviour and attendance partnership have been doing so on a voluntary basis. No arrangements were planned to monitor or enforce the requirement for schools to form partnerships, and no resources have been allocated to schools to help them with the administrative burden that that would have imposed.

One feature of behaviour and attendance partnerships is that schools pool resources to buy in specialist resources, including SEN provision. There is no reason why this should not continue, because it has taken place without any need for this section of the Act. These examples—the noble Earl came up with an example as well—demonstrate schools’ willingness to work together on behaviour without being required to do so.

Of course, we must hold schools accountable for the outcomes that they achieve for their pupils. Our reforms to the Ofsted inspection framework, which will focus it on the core functions of a school, will ensure that schools are held accountable for the behaviour of their students. How they achieve good behaviour is for each school to decide. If poor behaviour and attendance is identified as a key issue for a school, the management and senior leadership team should prioritise this and take appropriate action. In looking at the effectiveness of a school’s leadership and management, Ofsted will consider how they work with other schools and external partners to improve pupil outcomes.

We have already discussed in debates on previous clauses the Government’s overall approach to improving behaviour in schools. As noble Lords know, one element of this is our trial of a new exclusions process, where schools take responsibility for the education and attainment of pupils whom they exclude. The trial will give us a further opportunity to explore how schools can work effectively together and with others to reduce exclusions and how government can incentivise them to do so.

Perhaps I may respond to a point made by the noble Baroness, Lady Morris. In another place, Kevin Brennan said in a debate on exclusions that he would raise the issues of how—oh, I am sorry. All schools and admissions authorities are required by School Admissions Code to participate in the locally agreed fair access protocol to ensure that children without a school place, especially the most vulnerable, are found a place at a suitable school as quickly as possible.

I hope that I have demonstrated that repealing the legislation will not affect existing partnerships or stop new partnerships from forming. Behaviour and attendance partnerships appear to have flourished without ever becoming mandatory. This part of the legislation has never been put into force. I look forward to seeing this continue in future. I hope that the noble Baroness will feel able to withdraw her amendment.

My Lords, I thank the noble Earl, Lord Listowel, and my noble friend Lady Morris for their contributions, emphasising as they did the importance for all schools of collaboration and partnership working, and the great contribution that they can make and are making to the creative management of some of the most difficult problems of behaviour, discipline and attendance that schools are addressing.

I am sorry to say that I was not greatly convinced by the Minister’s response. We hear constantly from Ministers that such requirements on schools are regarded by the Government as bureaucratic burdens. I do not think that they are. They have been necessary in order to inculcate the kind of behaviour that we want from schools. The fact that the legislation has not yet been implemented in full does not mean that its repeal will not have any effect. Schools were anticipating this legislative requirement; it was the whole direction of travel of the previous Government. The fact that schools are doing it effectively now—some of them; not all of them—does not mean that the duty to engage in partnership is no longer required. As I said in my opening remarks, Alan Steer pointed out that some schools behave very badly, particularly in relation to exclusions. As my noble friend Lady Morris said, when that happens, it greatly affects all the other schools in the area. His clear conclusion was that all schools needed to be in these partnerships and that all schools should have that duty placed upon them.

I am not convinced that repealing the requirement will not have a negative impact on the partnerships that exist at the moment. We have to look at this matter in the round. We have heard from the noble Baroness, Lady Howarth, today about messages. Taken together, a lot of the messages in the Bill say to schools, “It’s not just about your independence. You can act in isolation. You don’t have to co-operate with the local authority; you don’t have to co-operate with the health service; and you don’t have to co-operate with each other in the development of solutions to these difficult issues”.

I very much regret the Minister’s response; I am not convinced by it. We will return to this matter on Report. For now, I withdraw the amendment.

Amendment 63 withdrawn.

Clause 6 agreed.

Amendment 63A

Moved by

63A: After Clause 6, insert the following new Clause—

“Prejudice-based bullying

(1) Any school to which this section applies shall collect and publish information on the extent of bullying related to any of the protected characteristics.

(2) The section applies to any maintained school, Academy within the meaning of the Academies Act 2010 and to such other schools as may be prescribed by regulations.

(3) For the purposes of this section—

(a) “bullying” includes negative behaviour directed at an individual or group which is intended to cause either physical, emotional or relational hurt or damage;(b) “the protected characteristics” has the same meaning as in the Equality Act 2010.(4) The Secretary of State shall prescribe what information is to be collected for the purposes of this section and how it shall be published.”

In moving the amendment, I acknowledge the support that I have had from both Stonewall and the Equality and Human Rights Commission in preparing it.

At Second Reading, I highlighted that homophobic bullying was reaching epidemic levels in our schools. I made it clear that this type of bullying affects young people regardless of sexual orientation in all schools including faith schools, academies and free schools. Stonewall recently published disturbing polling evidence revealing that nine in 10 secondary schoolteachers say that pupils, regardless of their sexual orientation, currently experience physical homophobic bullying, name-calling or harassment in their school. One in four teachers says that this happens “often” or “very often”.

The Government’s schools White Paper states that,

“tackling bullying is an essential part of raising attainment”.

However, while debating provisions within the Bill giving teachers the power to tackle bullying when it happens, we should not forget that schools must be in no doubt that they have a fundamental responsibility to prevent such bullying happening in the first place. Schools need to be environments where young people feel comfortable in reporting homophobic bullying. The amendment proposes that a requirement be placed on schools to record and report incidents of prejudice-based bullying. The requirement would apply to all schools, including free schools and academies.

I welcome the provisions in the Bill which attempt to deliver on the commitment to tackle bullying as set out in the White Paper, The Importance of Teaching. Nick Gibb, Minister of State for Schools, confirmed at Second Reading in another place:

“The coalition Government are committed to tackling all forms of bullying in our schools, including homophobic bullying, and the Bill makes a start by tackling the root cause of bullying—poor behaviour in our schools”.—[Official Report, Commons, 8/2/11; col. 261.]

There is scope in the Education Bill to do more explicitly to tackle identity-based bullying, which, as I have detailed, is a significant and growing problem.

Both Stonewall and the Equality and Human Rights Commission recognise the importance that government places on freeing schools from unnecessary bureaucracy and regulation. Therefore, a new requirement for data collection should not be proposed lightly—and I do not propose it lightly. However, the evidence of the size of the problem, its persistence over time and its impact on young people’s lives suggest that this is a proportionate and necessary measure that will enable Ofsted, parents and pupils to hold schools to account for their progress in tackling bullying.

The EHRC evidence shows that reporting on racial bullying is already widespread, with 75 per cent of local authorities collecting data from their schools on the extent of racial and ethnic bullying. Therefore, in my opinion, it would be straightforward for existing collection and reporting mechanisms to be extended to allow for the collection of data on other forms of bullying, such as bullying on the basis of sexual orientation and religion or belief.

Another concern is the lack of data gathering to monitor incidence of prejudice-based bullying by schools, perhaps compounded by new draft guidance issued by the Department for Education. This guidance provides information on preventing and tackling bullying and streamlines previous advice, but ultimately leaves decision-making on whether to keep written records to schools. In my view, keeping records is an essential tool to tackling bullying. It is an evidence-based approach to tackling this problem. The public sector equality duty requires schools to eliminate unlawful discrimination, harassment and victimisation and to consider how they could positively contribute to the advancement of equality and good relationships. As such, they are required to analyse the effect of their policies and practices on all the protected grounds.

Prejudice-based bullying is clearly one of the key issues affecting pupils, and a requirement to record and report across all protected grounds would help schools to meet their duty to support improvement in educational experiences and outcomes for pupils. I beg to move.

My Lords, I thank my noble friend for this amendment. He makes many powerful points about homophobic bullying. This is a very serious issue. Research has shown that many young people who are gay feel excluded and even suicidal when they are bullied because of their sexual orientation. Bullying has become a very much more complex issue in recent years. It can happen to any child, and some more than others. The person who is doing the bullying also has problems, as well as the child who is being bullied. We have to tackle all that complex mix.

Mobile phones and the internet, in and out of school, have driven some young people who are bullied to suicide, not just to suicidal feelings. We need to look at this very seriously. The issue of keeping records is important, but I would go back to something that I remember Graham Allen saying recently. One thing is having the firemen to deal with a situation but, before that, we need to have smoke alarm systems. I want to talk about the smoke alarms here, not literally but metaphorically.

We need to teach about bullying, in PSHE or wherever, and address the reasons why some people are bullied, why some people do the bullying and the feelings involved there. That is the first point. We need to discuss bullying with pupils in school and have them express their feelings about it. It is also a matter of what is happening in lessons and within the school’s own ethos: how does the school tolerate this?

There is another issue about having a school policy on bullying and on behaviour generally. We mentioned school councils the other day, and I gave the example of the school where I am a governor having a council which sets for each classroom, in an agreed form, the classroom behaviour code. This should be encouraged by schools because it is devised by the pupils themselves. Where the pupils have an issue and make the policy—on bullying, for example—it is much more likely to be effective. While I agree with my noble friend about keeping records, it is also important for schools to have a policy on bullying which is kept to and agreed by the pupils.

My Lords, I support my noble friend’s amendment for all the reasons that he set out so comprehensively, but also because identity-based bullying is a particularly prevalent experience for Gypsy and Traveller children. Indeed, it is thought to be responsible for much of the 20 per cent drop-out rate at secondary level. I have heard harrowing examples from Gypsy and Traveller members of the UK Youth Parliament about their own and their siblings’ and cousins’ experience, which included sometimes indifference, or even collusion, on the part of the teachers.

About three-quarters of local authorities collect information on racial and ethnic bullying. I am not sure that they always think that bullying Gypsy and Traveller children is ethnic bullying. In any case, the schools which do not supply the information or collect examples of that and other identity-based bullying most need their practice exposed and improved. It will surely help to address poor behaviour and, as my noble friend says, it will not be an onerous addition to raise the standard of the worst to the best. I hope that the Minister will entertain the possibility of accepting this amendment.

My Lords, briefly, I support the amendment and the reasoning behind it. We seem to have been through this process on a number of occasions during the passage of a number of different education—indeed, other—Bills. Above all, it constantly takes me back to the business of early intervention, setting standards and leadership within schools. I am back again to Graham Allen. All his theories and ideas are exactly what we should be thinking about.

Things such as Sure Start have done a great deal to show us the way forward. Equally, some schools have taken positive steps with early mentoring for every new student who comes in, with a positive responsibility—through the ethos of the school and the head teacher—to look after and integrate a new child into the school community. All these things are necessary, not least, as has already been mentioned, in a society where particularly nasty practices can take place using phones and photography—not to put too fine a point on it—thoroughly disturbing, if not worse, the life of a young child emerging into the world.

We may not have the right answer here. I look forward to hearing the Minister’s response. This is an important issue and I am glad that it has been raised in this context. Of course, it is not just homophobic bullying; it is a whole range of issues. We all need to keep an eye on them.

My Lords, I also support this amendment. It is a helpful move to ensure that schools, Ofsted, the Government and responsible bodies within our wider communities are aware of prejudice-based bullying as a result of anything in these categories.

Severe bullying in any form is wrong and much has been done in recent years. I know from my own time in Cambridgeshire in the 1990s that we had trained staff in every school not just to spot bullying but to support other staff in the implementation of anti-bullying policies. School councils existed to work with pupils even at a primary level to talk about the issue. One of the fundamental problems over the years has been that some schools have refused to admit that bullying exists in their schools. That is why collecting data becomes extremely helpful.

Over the last decade or so, I have also had the privilege of seeing the work of the Red Balloon Learner Centres, which are set up specifically to help children so severely traumatised by bullying they can no longer go to mainstream schools. Their intention is, and they mainly succeed, to get these children and young people back into mainstream school within two years of being unable to attend. These children have been so badly affected that it is not just about being afraid of going into school, but they stop learning as well. That is critical. As has been mentioned already, some threaten to take their lives and very sadly some have taken their lives.

I have one concern about the amendment, however. Those schools who deny bullying is a problem are probably less likely to accept that there is, for example, homophobic bullying going on in their schools. Guidelines to schools, therefore, should be absolutely clear to make sure that there is a requirement on schools to really think about incidents that are reported and what the root cause is. Let me give you an illustration why. I know a young man who, when he was 12, was taunted repeatedly for being gay and he found it impossible to manage at school. He also, incidentally, had a disability. His confidence plummeted, his educational performance was also significantly reduced and it took some time for these incidents to be taken seriously by the school, which prided itself on its pastoral care. Once it accepted that there was an issue, things swung into action. But by that time his confidence was at a seriously low ebb.

If required to report the bullying, I doubt that school would have picked it up in the first year of those incidents and the impact on the young person concerned was significant. Fortunately, in his case a move elsewhere gave him the chance to recuperate and his life was turned round, mainly by his own self-confidence once the bullying had stopped. Once he got to FE college, he championed the young Liberal Democrats’ Homophobia is Gay campaign within his college, much to the astonishment of his family, but it gave him confidence and allowed homophobia to be discussed at his FE college. He is now happily at university and doing extremely well.

The reason I cite that illustration is that it is often more complex than it appears when somebody falls into a particular category. That is why any guidelines need to recognise that often there may be more than one category and that would need to be recognised.

As has already been mentioned, the recent Equality and Human Rights Commission report and evidence on prevention and response to identity-based bullying is illuminating. Two-thirds of young lesbian, gay and bisexual pupils have experienced direct bullying. That this rises to 75 per cent in faith schools is a shocking statistic. Despite my concern about reporting, monitoring will help to improve the situation and it is right that it must be by all schools, including free schools and academies. It is evident that racial bullying is being reported. As has already been commented, 75 per cent of local authorities are now collecting data. Let us protect all children and young people in the prejudice-based groups, including sexual orientation, disability and religion or belief.

My Lords, I also support the amendment moved by my noble friend. He made a powerful speech at Second Reading and raised a very important issue, not least because it is still overlooked in this day and age and is still a difficult issue for some people to address. As the noble Baroness, Lady Brinton, has just said, Stonewall and other organisations have reported on a very high incidence of bullying of lesbian, gay and bisexual pupils. A feature of such bullying is that it is often hidden from adults because it takes place through text messages, social media sites and so on. It is often covert. However, as has been alluded to, the impact on young people can be absolutely traumatic. They fear going to school and being attacked, all of which impacts on their learning, sense of security and well-being. We have heard of some tragic cases in which people have harmed themselves or tried to commit suicide as a result.

There are three reasons why we ought to support this amendment in the name of my noble friend Lord Collins. First, it would ensure that important first steps are taken to discover the extent of prejudice-based bullying through the recording of incidents. That is a picture that needs to be fleshed out. Secondly, having to record the incidents would, in itself, raise awareness of and sensitivity to the issue among teachers and schools. Thirdly, as we have heard, there is an apparatus and a system in place to record ethnic and other kinds of bullying, to which this could be added without much onerous work or demands being made on schools or local authorities. Those are three powerful reasons. I hope the Minister will find that he can support the amendment.

Does the noble Baroness also endorse something to do with recording that is tremendously important—that is, discussion? Discussion should not be of the covert kind to which she referred, but brought out more openly by kind and sensitive teachers who are in touch with the temper of these times, which have changed so markedly over the past few years. Teachers are now in a position to handle these matters sensitively and to encourage more general discussion of them in schools, reaching a fuller, more mature, more balanced and good understanding.

I agree wholeheartedly with the noble Lord’s point, which reflects that of my noble friend Lady Massey. These issues should be discussed more openly in the round through personal, social and health education and other discussions that take place in schools. If such bullying happens to them, pupils will then feel safer and more confident in declaring what has happened to them.

My Lords, I briefly add a point about this being a Forth Bridge issue. It is perpetual and we must work at it all the time. I am interested in what the Government’s strategy for tackling bullying in schools is. The previous Government certainly had a strategy, which I assume the current Government will carry on and build on.

When I was involved with Childline, bullying was the most significant issue for children. I understand that this is still the case now that the NSPCC runs Childline. It came above safeguarding, relationships and issues to do with friends. It had an emotional impact on children. I know this because I spoke personally to hundreds of them over the telephone about their view of themselves, particularly young children from ethnic-minority communities, for whom this was a very confusing issue. More recently, we know that homophobic bullying has become much more rife, with names being called in the playground. Therefore, I recognise that collecting statistics may not be the Government’s way of taking this forward but I should like to hear more about what they are doing strategically. This is not something that needs a plan for today or yesterday; it has to happen all the time.

I remember advising the head of a school in the south of England where a young man had taken his own life. He said, “But we don’t have bullying in this school”. I said that the healthy position was to recognise that every school has bullying, but to have a strategy to deal with it that involves its pupils. I look forward to hearing what the Minister has to say about the strategic position.

My Lords, first, like others, I thank the noble Lord, Lord Collins, for raising this important issue and, if I may say so, for doing it in a very thoughtful way and getting the debate off to such a good start. He and other noble Lords have described the terrible impact that bullying can have on a child. I agree with him and other noble Lords that schools, pupils, parents and the Government must work together to tackle bullying in schools, and prejudice-based bullying in particular.

We set out in our White Paper, as the noble Lord mentioned, our clear expectation that schools should take a tough and firm stance on all forms of bullying. They should seek to identify what bullying is happening in their school and take steps to support pupils who have been bullied and prevent it happening in future. To support schools, we have issued the guidance to which the noble Lord referred, setting out their legal powers and duties, the principles that underpin the strategies used in successful schools, and the specialist organisations that can provide information to help schools to understand and tackle different types of bullying. This guidance makes it clear that primary legislation, introduced by the previous Government, already requires head teachers to determine measures to prevent all forms of bullying among pupils. The Equality Act 2010 further requires them to eliminate unlawful discrimination, harassment and victimisation and to consider how they can positively contribute to the advancement of equality and good relations.

As the noble Baroness, Lady Massey, said—and I agree with her—bullying is a problem which happens to children and young people in schools on a spectrum of severity and for all sorts of reasons. The noble Lord’s amendment addresses a particular kind of bullying, which is particularly horrid, but if one is on the receiving end of bullying all kinds of bullying feel completely horrid and vile. It is, as has already been explained, a complex issue that is too often hidden from parents and teachers, as noble Lords have said. I agree with the noble Lord, Lord Collins, that in order to tackle bullying schools must have a good understanding of what is driving bullying in their schools. That is a point that the noble Baroness, Lady Massey, made as well. We need a much broader approach. Schools must also understand the types of bullying that are a problem. It is crucial that they create an environment where pupils know that bullying is not tolerated and feel able to report it where it occurs.

The nature of bullying changes over time. If the noble Lord, Lord Rix, were here, he would talk about the concerns that he and others had about the rise in bullying of disabled children. If we had been here 10 years ago, we probably would not have had a debate about the rise in homophobic bullying. Therefore, understanding the issues and how they change over time is extremely important and will require different action in different schools. I have been told that 35 per cent of bullying goes unreported, so any system that relies on reporting alone cannot give a full picture of what is happening in a school.

The most effective schools use a range of approaches to monitor bullying. They combine evidence from incidents reported with other sources of information, such as anonymous surveys of pupils, surveys of parents and making use of school councils. We want to see more schools take a sophisticated approach that allows them to understand the problems in detail, address them and improve their approach based on evidence of what works. The new, more focused Ofsted framework will encourage schools to do this. Inspectors will have more time to look at how schools address poor behaviour, including bullying. That greater focus will flush out some of these things. The report that Ofsted will produce will provide information to parents about the detail of a school’s approach and how effective it is.

All that having been said, on the specific amendment moved by the noble Lord, Lord Collins, I fear that there are potential practical pitfalls with requiring all schools to collect and publish information about bullying in one way. That point was alluded to by my noble friend Lady Brinton. Information about bullying is by its nature fairly subjective, and the amount of bullying recorded will not necessarily depend on the amount of bullying taking place. I can envisage a situation where a low number of recorded incidents could mean that a school was exemplary at tackling bullying. Alternatively, it could mean that staff were not aware that it was going on or that children were afraid to report it.

We also know that nationally set targets can sometimes risk creating perverse incentives. For example, if a school needed to demonstrate that it was reducing bullying year on year to hit a target, that would not be an incentive to encourage pupils to report lots of bullying incidents because that would work against it. While requiring schools to collect data about the bullying of pupils related to the protected characteristics could help them to comply with the equality duty, it could also send a signal that other forms of bullying were less important. As I said earlier, if you are on the receiving end of bullying, whether or not it is a protected characteristic will probably be a less important issue than the fact that you are being bullied.

From a practical point of view, it would be difficult to design a standardised way of collecting the information about bullying that would both meet the needs of all schools and provide a fair comparison between them that parents or the Government could use to monitor progress. However, I am sympathetic to the argument of the noble Lord, Lord Collins, that information beyond that which will be collected by Ofsted may be helpful, so we should continue discussions with the Equality and Human Rights Commission and other interested bodies to identify how that might be done.

I readily agree with the noble Lord, Lord Collins, about the importance of schools monitoring the effectiveness of their approach. I am glad that he has raised this issue and that we have had this debate. We will work with the EHRC and other partners to develop an approach that will help us to achieve those shared objectives without creating unintended effects or necessarily adopting a more prescriptive approach. With that, I ask the noble Lord to withdraw his amendment.

I thank the Minister for his remarks and all noble Lords for their contributions to this positive debate. In moving the amendment, I did not want to give the impression that bullying was not a complex issue; it is complex, and we need to develop positive policies. I know from my own personal experience that often the first defence from homophobic bullying at school is to be a bully yourself. That is what we have to address.

The world has moved on. We are about setting standards. What happens in school carries on in later life and affects behaviour outside school just as much. I still can walk past a school with my partner and suffer taunts from inside the school. It is that sort of behaviour that we have to try to change.

I was not attempting to say that this was about targets or registering the amount of bullying; it is not about that. This would be just one tool to support the policies that I hope the Government support. If we do not have it, some kinds of schools in particular may hide behind the idea that the problem does not exist.

I welcome the Minister’s comment that he will look further into this, particularly with the commission and other organisations. In that setting, I beg leave to withdraw the amendment.

Amendment 63A withdrawn.

Clause 7 : Abolition of the General Teaching Council for England

Amendment 64

Moved by

64: Clause 7, page 10, line 30, at end insert—

“( ) This section shall only come into force if its provisions have been approved, by a simple majority, in a vote of registered teachers.

( ) For such a vote to be valid, 50 per cent of registered teachers must have voted.”

My Lords, the purpose of this amendment is to challenge the Government but in effect also to challenge the profession itself. During Second Reading, I and the Minister disagreed on one issue. I suggested that the Bill challenged the professional status of teachers and diminished them, while he felt otherwise. If there are two overused phrases in this Bill and in discussions on education generally, they would have to be “world-class education” and “professionalism” in relation to teaching. I have not done a word count on the Bill but it is literally littered with the words “profession” and “professionalism”, normally prefixed by the words “enhanced” or “increased”.

It is the refuge of a pedant to look in the OED but the words are very clear. Under “professional” and “professionalism”, it says:

“Reaching a standard or having the quality expected of a professional person or his work; competent in the manner of a professional”.

Or there is,

“raises his trade to the dignity of a learned profession”.

A professional is:

“One who belongs to one of the learned or skilled professions; a professional man”.

As someone who comes from outside politics, I have never ceased to be amazed by the sometimes brilliant ability of politicians to oppose, which in my judgment is only matched by the apparent hopelessness to learn from the mistakes of their predecessors. It is something that I have observed over the past 15 years and I have no reason at all to think that I am wrong.

I declare an interest as a former chair of the General Teaching Council. I make two points. I genuinely loath government by assertion, which is what we are dealing with here, whereas I celebrate government by evidence. We came in in 1997 on a mantra of evidence-based policy-making. Sadly, that had died by the millennium. None the less, it was a good idea in its time. Creating policy involves learning lessons from the past and gathering evidence from the present. In support of my contention that scrapping the GTC was the coward’s way out, I started looking for lessons from the past and I found more than I could ever possibly have hoped for. In the process, I have become a quasi-authority on the formation and development of the General Medical Council.

I have an advantage over the Minister in that I have looked through a number of interesting and riveting documents from the Library on the development of the General Medical Council—and I shall certainly hand them to him. What strike you immediately are the extraordinary parallels between the development of the GMC and the hoped-for development of the GTC. It is also interesting to see that throughout its history the GMC relied on lessons learnt, and mistakes made, by the development of the legal profession, which in turn relied entirely on the very ragged process of the development of the clergy. Only Henry VIII tried to interrupt this learning process—at least, until now. I will not go into that at this stage, although I certainly could.

The parallel is quite extraordinary. For example, there has always been only a minority of pressure within the profession for increased professionalism. Prior to 1858, when the law was passed in this House, the bulk of doctors did not think that it was necessary that they be regarded as professionals. They were perfectly happy with the way things were and thought that the market operated very satisfactorily. Throughout the history of the GMC, there was very little agreement on the level of the retention fee that ought to be charged to be a member of what was termed a profession.

Here I come to a challenge to the profession itself. I bow to no man in my belief that this is an important profession and that all my futures, and those of my children and grandchildren, are entirely dependent on several generations of outstanding teachers. That is very clear throughout the Bill. It cannot be squared with an attempt to scrap the embryonic professional body that we attempted to create, inadequately, in 1997.

Another fascinating parallel that I dug up a moment ago is that the inadequacy of the original legislation for the GMC in 1858 was described as a sort of disgrace because the public were ill served as the legislation was watered down to a point where they could not rely on the professionalism of an individual doctor. Noble Lords may think that I am overstating this parallel but I think that it is a very important one.

For 153 years, a great deal has been learnt about turning the medical profession into a respected professional body, frequently in the face of fierce opposition from within. I am not pretending that the GTC was remotely what I would have liked it to be—dreadful mistakes were made—but you do not scrap a professional body; you build on it and enhance it. You improve it and nurture it and sometimes you have to cajole and maybe kick it. But our aim is to have a far more professional and far more effective body of teachers adhering to a set of responsibilities.

Finally, I say this to the Minister. If the profession does not want the proposals in my amendment—and I have deliberately used the form of balloting for which the Government clearly have a preference in settling disputes—you will hear not one more word from me. But let the profession decide whether it wishes to be professional, whether it wishes to acknowledge the obligations that go with being professional and whether it wishes constantly to prove itself to the point where we have a generation of teachers of whom we can truly be proud. I beg to move.

My Lords, a few of the amendments in this group are in my name and it may help the debate if I speak to them first. I apologise for interrupting. I shall speak to Amendments 64A, 64B, 73A, 73B, 73C and 73D.

We have considerable sympathy with the intent of noble Lords who have supported Amendment 64. We believe that there is a need for government to send out a much stronger, more positive message to the teaching profession about their value and status. Therefore, we believe that a body carrying out the key functions of the GTCE should remain in the Bill.

Like my noble friend Lord Puttnam, we fully acknowledge that the GTCE has struggled to fulfil parts of its mission. However, in abolishing it, we are in danger of losing other functions which it has delivered well and which would be lost to the profession as a whole. For example, in abolishing the GTCE we will deny the teaching profession a self-regulated professional body on a par with virtually every other professional body in this country. As the GTCE itself says:

“The Bill would remove the professional infrastructure that is standard for other professions such as medicine, law and nursing, and for other teachers”.

Equally, teachers themselves are calling for the continuation of such a body. For example, the NASUWT says the abolition,

“will damage the status of the profession”.

Meanwhile, as we have heard, the Government talk endlessly, and quite rightly, about raising the status of the profession. However, if they are serious, it would surely be a regressive step to take away the professional body.

The Bill describes how certain functions will transfer to the Secretary of State and others will stop completely. I am very grateful to the noble Lord, Lord Hill, for his letter of 13 June setting out in more detail which of the GTCE functions will stop. In that letter he said:

“The GTCE functions which we do not propose to continue include: maintaining the register of teachers; investigating cases of professional incompetence; undertaking a range of surveys and research about the teaching profession; disseminating research and statistics; supporting teachers’ continuing professional development”.

Taking some of those examples, we believe that it is vital to maintain a professional register of teachers, as other professions do and, indeed, as the comparator bodies in Wales, Scotland and Northern Ireland will continue to do. The register of those qualified and entitled to teach in our schools has been successful in enabling employers to make recruitment checks. Under the Government’s proposals, all that will be held is a database of those prohibited from teaching.

Organisations such as the Association of School and College Leaders and the National Association of Head Teachers have made it clear how much they value a register of all qualified teachers that is accessible by schools. The NUT echoes that, saying that it would be a waste of resources if this work were abandoned now. The ASCL said that abolition of the GTCE and discontinuation of the registers removes the public’s guarantee that all registered teachers are,

“eligible, suitable, properly qualified and of good standing”.

It is not just the public’s but parents’ rights to the same guarantees that matter. For example, as part of my other life, I carry out some paid work for the General Medical Council, and I listened with great interest to what my noble friend had to say about it. Not only have I seen how much doctors value the General Medical Council’s register but I have seen how important it is for patients to access details of their doctors’ registration in an open and transparent way. Surely parents deserve the same rights? In a recent survey, 93 per cent of parents want teachers to be regulated, to have an agreed level of training and to be registered with a regulatory body before taking up a teaching post.

Incidentally, in the Bill’s General Committee in the Commons, the Minister, Nick Gibb, said:

“Although we are clear that we do not want to replicate the GTCE’s current register of teachers, we are exploring further what central records and data will still be needed in the future … I expect to confirm our plans to the House during the later stages of the Bill’s passage through Parliament”.—[Official Report, Commons, Education Bill Committee, 17/3/2011; col. 480.]

Perhaps the Minister can update us on those developments.

Our amendment also places a duty on this new body to exchange relevant information from the register with the General Teaching Councils for Wales, Scotland and Northern Ireland, which, as I said earlier, will continue. It seems obvious that if those other bodies are to remain effective, as teachers move around the nations as they are bound to do, it is important that we exchange that information so that we can uphold standards across the UK as a whole. Otherwise, if we are not careful, teachers whose registration is perhaps under question will all move to England where they will be in the least scrutinised area. I am sure that that is not the intention behind the Bill.

We have further issues of concern which these amendments address. Under the Bill only the most serious misconduct cases go to the Secretary of State, and he has only one decision: whether or not to prohibit them from teaching. Lower-level issues of teacher conduct would be dealt with at school level. This could potentially lead to inconsistent treatment from one school to another and, again, would be a process that lacks transparency. In addition, the burden of investigating and then deciding whether or not to ask the Secretary of State to consider prohibiting the person from teaching would pass back to the school. Teachers would not be confident that they were being judged independently.

A number of noble Lords in the Second Reading debate raised concerns about the centralisation of power that the Secretary of State is taking to himself, and this is one of those areas. My guess is that taking direct control of teacher discipline might be one area that he will grow to regret, so it could be argued that we are doing him a favour by tabling these amendments. On a more serious note, there are also more practical concerns about whether the Secretary of State has sufficient resources and expertise to undertake these new functions, such as the function to prohibit people from teaching. For example—this is now historic, but it is still a rather alarming statistic—in 2006, a review found that 88 known sex offenders had not been banned from schools and there is a danger that, unless we put comprehensive processes in place, that situation will worsen. An independent body with gradations of sanction, as proposed in the amendment, would allay many of these problems.

Amendment 64B is similar to Amendment 65 of the noble Lord, Lord Lexden; he may well want to speak on this. The Bill repeals the requirement for employers to tell the Secretary of State when a teacher is dismissed for serious professional misconduct reasons. Under the Bill, the revised wording only requires employers to,

“consider whether it would be appropriate to provide prescribed information about the teacher to the Secretary of State”.

We are concerned about the variation in treatment from employer to employer that would result from this, and we are also concerned about how employers would know whether something was considered serious enough to report to the Secretary of State.

Without a duty to refer to the Secretary of State there is a real risk of differential reference thresholds across the country. More importantly, it would make it difficult for employers to get consistent information about potential staff members who might previously have been dismissed, with the result that they will lose confidence in the whole referral system. It could also lead to poor decisions on recruitment leading to poor teaching, or worse. We therefore hope that the Minister will reconsider this issue.

Amendments 73A, 73B, 73C and 73D sound more complicated than they are, but they all refer to the arrangements for winding up the GTCE’s affairs in respect of staff, property, rights and liabilities should our earlier amendments not be successful. The GTCE is a membership organisation most of the income of which comes from membership fees: £19.3 million out of a total income of £19.7 million. The GTCE had reserves of some £9 million on 31 March 2010. Does the Minister think that, on abolition, it would be fair for the reserves to go towards abolition and redundancy costs of staff? Or, given that the staff had paid the money in the first place, should not the reserves go to a charity or some other service that would benefit teachers? The amendments would allow the Secretary of State to transfer GTCE property to a charity and prevent the reserves disappearing into the wider departmental budget for uses that would not necessarily benefit the profession.

I am sorry that I have taken a little time to talk through these amendments, but I hope that it has underlined the fact that it is easy to dismiss an organisation as an unnecessary quango and that dealing with the consequences for the profession requires considerably more care than the Bill so far provides. I hope that our amendments go some way to addressing that deficit.

My Lords, if the only the noble Baroness, Lady Jones, had been in charge of briefing for the Opposition in the other place in February, such a massive and very welcome defence of the GTC might well have given this Bill a different course as it has proceeded through Parliament.

Even now, having heard the noble Lord, Lord Puttnam, we seem still to be assuming that the GTC is no good. We know that it has not been the huge success that those of us who spoke for it 15 years ago naively anticipated, but it has not been a complete failure either. The GMC, the historic model, has been discussed by the noble Lord, Lord Puttnam. Let us not forget that, even at the present time, the GMC’s wheels sometimes grind a little greasily, particularly over the competence of individual practitioners. That does not mean that any patient would want to see the GMC abolished and its role devolved to Andrew Lansley. The GMC is strong in its institutional mechanisms and it can put right the defects that are inevitable in any human institution. That is true for the GTC. I do not know much about it, and I certainly do not know as much about it as the noble Lord, who directed it during its first, uneasy infant steps. The GTC, I am reliably informed by people inside it, knows that it is not working properly. It knows what is wrong, why it is wrong and how to put it right. The solution surely is to fix the GTC, not to abolish it and then have a string of amendments such as we have in front of us today replacing the bits of the GTC that we see as so essential and putting them into somebody’s hands in the Department for Education. Surely the time has come really to think, “If this is a failure and if we did wrong 15 years ago, let us look to see whether this is true”.

In his Second Reading speech, the noble Lord, Lord Lexden, who said that teachers in the private sector of education, for whom this Bill is not intended, are very keen to join the GTC. In January this year, research was published that showed that more than 90 per cent of parents wanted the profession to be regulated by a body such as the GTC and not by the Government. During all their speeches in this House and the other place, Ministers such as Mr Gove and the noble Lord, Lord Hill, have talked continuously about trusting the profession and letting teachers use their professional judgment. The amendment of the noble Lord, Lord Puttnam, says, “Let teachers be the judge”. Let us go to the teachers and ask—as we had thought and hoped that we would—whether they want to be regulated by someone in Whitehall or are big enough to start regulating themselves properly.

My Lords, I will not take you back to Henry VIII, as the noble Lord, Lord Puttnam, did. I sympathise enormously with his position. He did a magnificent job in trying to get the General Teaching Council off the ground. The issue of the GTC arose long before the noble Lord did, but rather after Henry VIII, in so much as the publication of Nicholas Nickleby by Dickens in, I think, 1840 so shocked the Victorian mind concerning conditions in schools that moves towards a general teaching council were started almost straight away. As the noble Lord told us, and the noble Lord, Lord Quirk, repeated, the General Medical Council was a great spur to teachers to get moving to get their own profession. What went wrong?

What went wrong was something that went right. In the 1860s and 1870s, as these moves were going on, teachers’ unions and associations started to get their act together. Quite rightly, they were there in order not to protect the customer—which is what a general teaching council and a general medical council are about, by improving professionalism—but to stop teachers being exploited by employers. That is how the unions came together. Unfortunately, these two things became conflated, and they stayed conflated throughout the 20th century. All the moves towards a general teaching council, which were successful in Scotland, died away because of the conflation of ideas on what a union would do and what a general teaching council should do.

I remember being sent by the then Secretary of State, Mark Carlisle, to talk to all the union leaders, because he rather thought that a general teaching council would help to improve professional standards. It was very clear right from the beginning that it was all about how the unions would get certain seats on such a council and what power they would have, and what power they would have to give away.

When it comes to the noble try by the noble Lord, Lord Puttnam, to get that together, we find exactly the same thing. As he said at Second Reading:

“Some of the unions that claimed to want a GTC backed off the moment they realised it might involve power-sharing, and the Government of the day were extremely ambivalent”.—[Official Report, 14/6/11; col. 754.]

Governments of every shade have been ambivalent throughout the history of bids for a general teaching council because they were absolutely unwilling to hand the reins of teacher supply to an outfit that would come to be dominated by unions. Today, if I remember correctly, some 36 of the current General Teaching Council’s 64 members have strong union connections. Therefore, the conflation is still there.

I should like to think that one could get 51 per cent of teachers to vote to keep a professional council going. However, I rather doubt that that will happen. On the question of money, raised by the noble Baroness, Lady Jones, I believe that £33 of the £36 annual subscription paid by teachers is subsidised by the state. That means that £3 is paid by teachers—£1.80 after tax, or the cost of a cup of coffee. That does not seem the right stance for a professional body as far as subscriptions are concerned. I am very sad because, in principle, the whole idea of teachers’ professionalism being represented through a body of this kind has always appealed to me. However, sadly, the past 13 years of valiant efforts to get the General Teaching Council to do what it always should have done have, by noble Lords’ admission, failed. It is time to return it to the education history books.

My Lords, I am happy to support noble Lords’ Amendment 64 and the thrust of Amendment 64A in the names of the noble Baronesses, Lady Hughes and Lady Jones. At Second Reading, I went on record to defend the GTC for England. On these Benches, we support the removal of quangos that are unnecessary or whose functions are retained elsewhere. However, that clearly will not happen in this case. We will be left with little more than a list of teachers who are no longer fit to practise. There will be no remnant of a professional registration body.

It is said that a society is measured by how it cares for the vulnerable—the elderly, the disabled, those who are ill and children. A teacher has the future of a child in his or her hands. Nurses, doctors, lawyers and social workers have registration bodies that act independently of the Government. Only last week, I heard of plans by the Nursing and Midwifery Council to include the registration of healthcare workers. What is therefore special about teachers in England that this is denied to them? The elegant Amendment 64 calls for the members of the profession to reject the Government’s proposals, should a majority of them so wish, thus maintaining the status quo. Amendment 64A outlines a professional registration body as it should be through proposed new paragraphs (a) to (e), and it is a proposal of which teachers could be proud.

Consequently, on these Benches we support the intention of Amendments 64 and 64A. The noble Lord, Lord Lingfield, made the point that the GTCE had not worked so far. That is absolutely no reason to dismantle completely something that should exist. It is incumbent on us to leave it there and try again.

My Lords, I shall be relatively brief; I suspect we shall want to adjourn fairly soon. I was pleased to put my name to the amendment in the name of my noble friend Lord Puttnam, not just because there is a reasonable presumption that you should always agree with one of the people who proposed you at your introduction but because he is, as ever, right. As we have heard, the amendment suggests that teachers themselves should vote on whether the GTCE should continue. I looked up what the Secretary of State, Michael Gove, said on 2 June last year, when he announced the scrapping of the GTCE. Incidentally, I understand that the people working there, including the chief executive, were at the time as surprised about it as everybody else. Michael Gove said that the Government trust the professionals. This amendment trusts teachers to decide whether they want their professional body to continue.

The other half of the amendment uses the proper threshold. This should appeal to the Government, given that on 26 June, on the “Andrew Marr Show”, the Secretary of State Mr Gove confirmed that Ministers are looking at minimum thresholds in the context of strike ballots. In respect of such a ballot, which I am assuming that the Minister will say he supports, because it is so much in the spirit of where this Government are going, I would argue for the retention of the GTC, but with reform as necessary. Why the GTC? Because, in the end, professionalism is important. Again, I looked up the words of the Secretary of State in November last year in his forward to the White Paper. He said:

“At the heart of our plan is a vision of the teacher as our society’s most valuable asset”.

He went on to say:

“There is no calling more noble, no profession more vital and no service more important than teaching”.

Who could disagree with his words?

The Secretary of State’s actions cause me a little more concern. Given his commitment, if he so believes in them and their professionalism, it is a surprise that teachers have voted overwhelmingly that they have no confidence in this Secretary of State. Perhaps that is because of the reality of his attacks on that professionalism. Look at what he is doing to the pension scheme. When the noble Lord, Lord Adonis, was in his place, he renegotiated the teachers’ pension scheme and made it effective and funded. They see that attack. They see anyone being allowed to teach in free schools, and they see a mum’s army being asked to come in and teach during the strike. If he was Health Secretary, would he have had said the same about nurses, and that mums should go and replace nurses in hospital if there was a nurses’ strike? If he was the Secretary of State for Communities and Local Government, would he ask them to do the same if there was a firefighters’ strike? I suspect not. I suspect that he would respect their professionalism more than he respects teachers.

Then he wants them arbitrarily to close their professional body. As others have said, would he have closed the General Medical Council if he was Health Secretary? No he would not. He would respect their professionalism and their professional body. The other shocking consequence of the abolition of the General Teaching Council is that the teaching agency will take on only the disciplinary functions of the GTC, as we heard in a speech of my noble friend Lady Jones. Can he confirm this? Does this seriously mean that there will no longer be a register of teachers? If so, this is an extraordinarily reckless move by the Government. I assume that the logic is that it is now up to schools to decide whether anyone can teach and what they are paid, and it is all part of this wonderful freedom that we are now going to give head teachers. Hence the assumption is that everyone is eligible to teach unless they fail a CRB check. I find it incomprehensible as to how that will work—and not just in relation to the relationship with Northern Ireland, Wales and Scotland and making sure that people can move freely, as was pointed out by the noble Baroness, Lady Jones. I just do not understand how the teaching agency will exercise its disciplinary functions without a register or how this move will improve teaching standards. I see it only lowering teaching standards. There are opportunities to use a register to raise standards. You could introduce a right to continuous professional development to teachers and, in return, they would have to re-register, so that we could ensure that they continued to receive training and raise their professional standards.

Finally, I repeat the point that this is part of the power grab by the Secretary of State. He will be directly responsible for recruiting, training and disciplining teachers as a result of this Bill. That is a massive change. It makes him very vulnerable to problems, when problems occur, as they inevitably will. But that is his problem.

These are just some of the arguments and reasons why I would reform the GTC to distil its statutory functions down to those coincidentally in Amendment 64A, proposed by the noble Baroness, Lady Jones. We could also think about the composition of the council and how it can be reformed better to represent the customer rather than the producer of education. With reform, I think the GTC can be an effective organisation, but I am happy to be hands-off about this and to leave it to teachers—hence my support for the amendment. If teachers do not want their professional body, they should be trusted to get rid of it.

I rise partly to apologise to the noble Lord, Lord Lingfield, for calling him Lord Lucas earlier. I am sorry for that. I blame my Front Bench for giving me the wrong information. I do not want like the noble Lord, Lord Puttnam, to go back to the Middle Ages and end up at 1858 with the General Medical Council or indeed to revisit Nicholas Nickleby and the Dickens novels. I would like to start in 1963 when I became a teacher. It was the proudest day of my life when I got my first teaching post and went into a secondary modern school, Middleton County Secondary Modern boys school in Leeds. I spent 34 years in the teaching profession and I regarded it not only as a profession but as the most noble and decent thing that I have done in my life. If I had my life to run over again, I would do exactly the same thing.

One thing was always missing, however. Those of my friends who, unlike me, did not leave school early to try to play football and fail before going into teaching but who became doctors, lawyers or dentists all had a professional body which not only were they proud of but which decided the standards by which they ran their profession and which they met.

It was interesting that last Thursday we had two of your Lordships, the noble Lords, Lord Ramsbotham and Lord Hill, proudly talk about having to visit the dentist. I do not know whether it was an enjoyable experience for the Minister but it certainly was for the noble Lord, Lord Ramsbotham, who was speaking perfectly well today. I suspect that when they went to the dentist they wanted to know that the dentist was registered as a dentist with the General Dental Council, which was set up by the Dentists Act 1956. If they had any doubt, they could have gone on the internet, looked at the register and confirmed that the dentist was qualified, registered and hopefully competent. They would not have liked to go on to the web and seen a phrase saying, “It might be a dentist. The only information we have is that he has not been barred for misconduct and that at some time in the past he did some training”.

That is what we are talking about. Let us remember that this Bill comes from the White Paper, The Importance of Teaching. If the importance of teaching is to say that we are not even prepared to let you as a profession have your own register to decide the standards by which you operate, the standards by which parents have confidence in you and the standards by which society has confidence in you, then God help us.

I can say to the Minister that the dentist that he visited last week was taught by teachers. They got the training necessary to go off to university and to train as a dentist from the teaching profession as it stood. I say to my noble friend that the GTC was set up by the Teaching and Higher Education Act 1998 and that I sat on that Bill. To be fair to the Minister, the Labour Party at the time was not desperately keen on it either. I can remember proposing an amendment to that Bill which set up the register, because the original proposal—the noble Lord, Lord Puttnam, will agree—was to have a GTC but with the Secretary of State having the register. It was through good argument during the passage of that Bill that we persuaded the then Government that essential to a GTC must be a register of teachers who were not only trained and competent. That was the very basis of it.

I support much of what the Minister wants to do in saying to schools that they are going to have greater autonomy, that head teachers will have greater autonomy and that the Government are going to set up all sorts of different organisations, although we may or may not agree with some of them. But to say that the one group of people who cannot have autonomy are the teachers themselves as part of the teaching profession is sad indeed.

As the noble Lord, Lord Knight, mentioned, for the Secretary of State to say in his White Paper that there is,

“no calling more noble, no profession more vital and no service more important”,

than teaching and then, at one stroke of the pen, say, “Ah, but you are not even worthy of having your own teaching council”—my goodness, Minister, you really do need to think again.

My Lords, the Grand Committee normally finishes at 7.30 pm. We have gone into overtime on this. If any other Lords wish to speak, could they please be very brief to make quite sure that we are not going too far into overtime? My noble friend Lord Lexden has an amendment in this group, but otherwise might we please have a plea for brevity for the convenience of the Committee?

My Lords, I note what the noble Baroness said. Briefly, I add to the tributes paid to the noble Lord, Lord Puttnam, and others, and the work that they have done. I am slightly surprised that some of my noble friends have supported his amendment. As I read it—and this may be something that the noble Lord wishes to reflect on or help us with when he responds—it slightly has the character of a wrecking amendment, or certainly one leading to a disincentive to take part in a decision on the future of the GTC. The amendment says:

“For such a vote to be valid, 50 per cent of registered teachers must have voted”.

As I read it, the assumption would be that the provision was part of the law of the land. Therefore, in order to frustrate the will of Parliament, as its effect would have been if the Bill had been enacted, those who were unconcerned or perhaps led to boycott the vote could decide the outcome of a ballot such as the noble Lord proposes. Having heard the eloquent statements about the ringing importance of the body in this debate, that is a very negative way of looking at it. I would therefore find it hard to support the amendment under any circumstance. It lacks confidence in the case being put, and is potentially a wrecking amendment in that it sets a threshold that would easily fail to be achieved by dint of a boycott, which is something that we should not wish to encourage.

My Lords, having made clear my general support for the concept of the GTC at Second Reading, I will quickly make three points. The noble Lord, Lord Quirk, kindly mentioned the upsurge of support that occurred in independent schools, with which I was then connected as general secretary of the Independent Schools Council. It was marked and reflected many things, but above all it was in response to the quite extraordinary enthusiasm and determination with which the noble Lord, Lord Puttnam went about the initial work of laying the foundations for the GTC.

Secondly, I emphasise on behalf of independent schools, with which I remain informally connected, the importance that they attach to the maintenance of the register in any circumstances which may exist in the future. Finally, I make the simple observation that there will be a GTC in Scotland, a GTC in Wales and a GTC in Northern Ireland. Will it not look very odd not to have a GTC for England?

My Lords, having for some years taken an interest in the low status of professionals working around children, particularly the low status of social workers, I have always been drawn to the model used in the health service and in the law. Senior practitioners in the health service very much have the responsibility for bringing on new blood, having an impact on the supervision and development of juniors. There is the same approach, particularly in law, with pupillage. It is retrograde to move away from a position where teachers were perhaps beginning to take more control over their continual professional development. The GTC might have allowed for that. As all noble Lords have said, it seems extremely ironic and strange when the Secretary of State says that teachers are the key to improving outcomes above all things and then takes away the professional body for teachers without offering a strong replacement. I look forward to the noble Lord’s response.

My Lords, on the status of the teaching profession, I agree with everything that has been said. The issue that we are debating today is whether professionalism can be captured only in some national regulatory body or whether it can be found in other parts of the wood.

I was very struck at Second Reading when the noble Lord, Lord Knight, spoke of the success of Teach First as being great achievement of the previous Government. He could have spoken about the work of National Leaders of Education or Local Leaders of Education, or the work of the National College, which are all very good examples of professionals working to raise standards and help other professionals. He could have mentioned the growing numbers of academies taking on responsibility for helping other schools in chains or clusters. Those all seem to be aspects of a profession taking responsibility for itself. I may be wrong because I was not around at the time, but I am not sure how prominent the role of the GTCE was in taking forward Teach First, National Leaders or partnership working between schools. Having a national body of that sort does not deliver professionalism, raise standards or deal with important issues about continuous professional development. The Government believe that we need a regulatory system that is credible, effective and provides value for money—I think that there is acceptance for that today.

I do not take any particular pleasure in the ending of the GTCE. I know that it was started with high hopes and that there were many who had wanted it, as we have already heard, from the 19th century. The noble Lord, Lord Puttnam, both today and at Second Reading, spoke eloquently of the practical problems that it faced at its birth—I think that the phrase he used at Second Reading to describe his appointment was “hospital pass”. However, what is clear—I do not want to labour this too much—is its record. Since the GTCE was formed in 2000, nearly two-thirds of local authorities have never referred a case of incompetence to it, despite employers having a statutory duty to do so. Since 2001, the GTCE has concluded only 82 competence hearings and struck off 15 teachers for incompetence. The majority of our teachers, we know, are highly competent professionals, and we would not question that, but it seems unlikely that in the whole 10 years there have been only 15 incompetent teachers.

One fact that struck me as evidence of the attitude of teachers towards the GTCE was the point raised by my noble friend Lord Lingfield; that is, of the modest £36.50 annual registration fee, the taxpayer has to subsidise £33. That does not seem to be a very powerful sign of a profession that feels strongly about the role that the GTCE performs.

The noble Baroness, Lady Jones, made reference the views of the NASUWT. I recognise that its views can change over time, and they clearly did, because the general secretary of the NASUWT has said:

“I have frequently said that if the GTCE was abolished tomorrow few would notice and even less would care. I have absolutely no doubt that the Secretary of State’s decision will be warmly welcomed by teachers across the country”.

The key question is that posed by the noble Lord, Lord Puttnam; namely, what should replace the GTCE if one accepts that it has not delivered in the way that he and others had hoped at its beginning?

Perhaps I may set out what we are proposing. It is, in essence, the following. A smaller, more cost-effective body, the teaching agency, would deal only with matters of misconduct. Hearings would be heard by a panel made up of representatives of the profession and independent lay people, with a right of appeal, as now, to the High Court.

Issues of incompetence would be dealt with separately. I have always thought that the GTC’s current sanction for incompetence was a surprisingly nuclear option. Rather than a slow, cumbersome process that led painfully to a national process and ultimately—for 15 teachers—to barring from the profession, we think it would be better to have a much more flexible, local system whereby issues are resolved more quickly. We can all think of people who have not made a go of it with one employer, but who flourished somewhere else. We are therefore keen to move to a system with all the same protections in employment legislation whereby employers can exercise judgment, address problems more swiftly, and help teachers to improve.

We have been carrying out a review of the professional standards for teachers, which will give employers clearer national benchmarks for performance and conduct. We are currently consulting on simplified arrangements for performance management and tackling poor capability. That will streamline the system and remove the current duplication that employers have found is a barrier to tackling performance issues. We will also strengthen the training and support available to school leaders, so that head teachers and aspiring heads are better prepared for their management role through a revised national professional qualification for headship. We think that these measures will leave the powers to deal with teacher incompetence in a more appropriate place and help head teachers to exercise those powers more effectively than the current regulatory system does.

So far as conduct is concerned, none of this is to say that we think there is no role for a national regulator. On the contrary, we are clear that where teachers are guilty of serious misconduct, they should be referred to the national regulator for potential barring from the profession. That mechanism is cumbersome for head teachers and the regulator, because every case where a teacher is sacked for misconduct must be referred, even though the vast majority of these cases do not warrant barring. The new arrangements will be more effective by giving employers discretion, while still ensuring that the most serious cases are referred. Where cases are referred to the regulator, the Bill gives the Secretary of State a new power to make interim prohibition orders. This power was always intended for use in the very rare cases where it is in the public interest to bar an individual from teaching while an investigation is under way. Amendments 64AA, 65A 65B and 65C have been tabled by the Government in response to your Lordships’ Delegated Powers and Regulatory Reform Committee’s recommendations that the safeguard for this power be put in the Bill.

Noble Lords have asked for reassurance that the element of discretion that we are introducing will not lead to a weaker and less consistent system. It is of course important that the new system protects pupils and maintains confidence in the teaching profession. Let me say straightaway that the proposals make no change to the duty on all schools to refer any cases of serious misconduct relating to children to the Independent Safeguarding Authority.

I should also draw your Lordships’ attention to the fact that the Bill provides for referrals to the Secretary of State from members of the public. Where a parent or other member of a community disagrees with the judgment of a head teacher who has not referred a teacher dismissed for serious misconduct, they may make the referral themselves. This provides a further safeguard that teachers in the most serious cases will not in some way slip through the net.

I turn to the important issue of the Register of Teachers, which a number of noble Lords raised, including the noble Baroness, Lady Jones of Whitchurch, my noble friend Lady Jolly, the noble Lord, Lord Knight, and my noble friend Lord Willis of Knaresborough. The Government said in another place that we would consider the arguments in favour of making available data about teacher qualifications. We have listened to what the head teachers’ unions have said—that point was raised by the noble Baroness, Lady Jones of Whitchurch. I have also listened to the case eloquently made today by noble Lords, particularly by my noble friend Lord Willis of Knaresborough. It is right to say that the teaching agency will maintain a database of teachers who have attained qualified teacher status and who have passed their induction period. That seems to be an eminently sensible point and we will take it on board. That database will be available online to employers from April 2012.

Some amendments concerning surveys and statistics—CPD and so on—were spoken to by the noble Baroness, Lady Jones of Whitchurch. The Government will continue to commission research and to support the effective management, assessment, planning and development of the teaching profession. We are in the process of considering what the data and research needs of the new teaching agency and the department will be.

The CPD part of the GTCs’ work is currently shared with the TDA, and in future work on CPD will form part of the remit of the new teaching agency. However, as I have already said, over time we would tend to see more and more of that work being delivered by schools.

With regard to some of the more technical issues, the noble Baroness, Lady Jones of Whitchurch, raised the question of information-sharing between the GTCs in the devolved Administrations. Officials in the department recently met their counterparts and the GTCs from Wales, Scotland and Northern Ireland to discuss this issue. We have an agreed approach to sharing information between the four nations and will continue to meet regularly to discuss that.

On cash reserves, I agree with the noble Baroness that, if money was originally paid to the GTCE for the benefit of teachers and some of that money is still available, it should continue to be used for a similar purpose. If there were any cash reserves, we would use them for the benefit of teachers and the teaching profession—for example, to contribute to the continuing administration of the regulatory function, which a large proportion of the GTCE’s fees was spent on.

I recognise that my answer is disappointing to the noble Lord, Lord Puttnam. I never like to disappoint the noble Lord, for whom I have great respect. I hope that what I have been able to say about the register will provide some reassurance to noble Lords who I know were concerned and that, taken together, my response will enable the noble Lord, Lord Puttnam, to withdraw his amendment.

I thank the noble Lord, Lord Hill. I certainly do not want to detain the Committee but wish to make two points. I was very impressed by what the noble Lord, Lord Lingfield, said and was very impressed at Second Reading by the speech of the noble Lord, Lord Lexden. I should like to touch on those for one second. As both of them know, I am conscious of the fact that the job I took on was very much a question of standing on the shoulders of giants. I had read a lot about but, sadly, never met Sir Alec Clegg, and I knew John Tomlinson very well. These were great men. They were noble and decent, and my job was to try to deliver something of their vision. I fought hard and successfully, and I think that it was a good move to bring the independent schools on to the GMC. I could not have had two more heroic figures than Ian Beer and Elizabeth Diggory to support me, and I feel very strongly that, were they both here today, they would not wish to throw in the towel at this point.

I also want to touch on Scotland, which both noble Lords mentioned. I spent a fair amount of time in Scotland and took a lot of advice from the then chairman of the Scottish GTC. He said, “Give it time, laddie. Give it time”. He was right. We needed to give it time but we have not given it sufficient time. I should possibly have listened to him even more. No one is pretending that Scots unionists are any person’s pushover; they have intense pride in the profession. My amendment is simply intended to challenge the English teaching profession to show similar pride, similar determination and a similar commitment to getting their act together. It requires them to create something of which they and we can be proud, and we can be very proud that we protected it when it was under pressure. For the moment, I am happy to beg leave to withdraw the amendment.

Amendment 64 withdrawn.

Clause 7 agreed.

Amendment 64A not moved.

Clause 8 : Functions of Secretary of State in relation to teachers

Amendment 64AA

Moved by

64AA: Clause 8, page 12, line 22, leave out “2(3)” and insert “2A”

Amendment 64AA agreed.

Amendments 64B and 65 not moved.

Amendments 65A to 65C

Moved by

65A: Clause 8, page 13, leave out lines 32 to 34

65B: Clause 8, page 13, line 42, at end insert—

“Interim prohibition orders2A (1) Regulations under paragraph 1 may make provision for the Secretary of State to make an interim prohibition order, pending the Secretary of State’s final decision under section 141B(2).

(2) Regulations about interim prohibition orders must provide that an interim prohibition order may be made only if the Secretary of State considers that it is necessary in the public interest to do so.

(3) Regulations about interim prohibition orders must provide that the Secretary of State must review an interim prohibition order—

(a) within six months of the order being made, and(b) within each subsequent six month period,if the person to whom the order relates makes an application to the Secretary of State for such a review.”

65C: Clause 8, page 14, line 27, leave out “2(3)” and insert “2A”

Amendments 65A to 65C agreed.

Clause 8, as amended, agreed.

Committee adjourned at 8.05 pm.