Wednesday, 6 July 2011.
Arrangement of Business
My Lords, before we start, the noble Baroness, Lady Garden of Frognal, will say a few words.
My Lords, before the Lord Chairman calls the first amendment, perhaps I may make a short intervention regarding our proceedings in this Grand Committee. The rules in Committee here are the same as in the Chamber: Members may, of course, speak more than once and they may speak after the Minister. However, some self-regulation is none the less required if we are to make progress on the Bill at a conventional pace. On the majority of Bills before your Lordships’ House, we regularly debate about four groups an hour in Committee; on this Bill, we have so far managed about four groups a day.
The Committee may wish to recall the guidance in the Companion that the debate must be relevant to the amendment in hand and that the Minister may of course be interrupted only for brief questions for clarification. As for speeches in general,
“The House has resolved ‘That speeches in this House should be shorter’”.
As long ago as 1999, a Leader’s Group reported that,
“Second Reading speeches on amendments are unacceptable.”
That word is not in the Companion, but I suspect that we will agree that the Committee does not want to retrace the debate at Second Reading.
Our target today is to reach Amendment 85A, which is somewhat ambitious. At a convenient halfway point, we shall have a comfort break. Finally, I understand that the Department of Facilities has arranged for the air conditioning to be cooler today, which I hope will further assist our work.
Committee (4th Day)
Relevant document: 15th Report from the Delegated Powers Committee, 13th Report from the Joint Committee on Human Rights.
66: After Clause 8, insert the following new Clause—
“Minimum qualifications for teachers
(1) To continue in practice or to take up new employment in a school, teachers must have—
(a) a minimum of 50 hours of continual professional development each year, and (b) such minimum qualifications in child development and behaviour management as specified by the Secretary of State.(2) Schools have a duty to ensure that the necessary continual professional development is provided.”
My Lords, in moving Amendment 66, I will also speak to my Amendment 67. These are probing amendments, the purpose of which is to gain reassurance from the Minister about the entitlement of teachers to continuing professional development. Given that this is a changing environment, I would be grateful for reassurance about that entitlement.
In particular, if schools are taking more responsibility for the CPD of teachers, there must be clear funding for that in the future, given the need for consistency of CPD across education. As I hope noble Lords will agree, if we are to do well for our children, it is absolutely vital that our teachers are well supported in schools. If teachers do not get the support that they need through professional development, they are much more likely to burn out early. In addition, matters such as the inclusion of difficult pupils will be more difficult if teachers are not given the support that they need to give those pupils the necessary understanding and support.
When Professor Sir Michael Rutter, the renowned clinical psychologist, spoke some time ago at the British Psychological Society, he highlighted his concern that initial teacher training includes very little input about child development. In the past, there was some reference to child development, but it consisted of a rather dry few pages on Freud, Piaget and other theoreticians. The teachers to whom I speak say that they would prefer to learn about child development and about managing children’s behaviour a little while after they have started in practice with pupils, because they realise then the importance of understanding these things. It is very important to have a reflective workforce if we are to get the excellent outcomes for our children that we all want.
The bulk of teachers are already in the profession. Although we are looking at ensuring quality in teacher training and induction, most of our teachers are already in schools and many of our teachers are over 50 years old, so it is very important that we also attend to their continuing professional development. I look forward to my meeting tomorrow with Charles Taylor, the Government’s adviser on behaviour, who I think would probably agree with me—I hope that I am not being presumptuous—that it is very important for teachers to be able to depersonalise their interactions with their more challenging students so as not to take personally what may seem to the teacher to be a personal attack but which will very often be something to do with what is going on in the home environment.
It is also important that teachers are aware of developmental milestones, for reasons that many colleagues have given in the past. I hope we might also consider developing some of the best practice from the continent, whereby trainee teachers get to observe a child over a long period, take careful notes and share those observations with other teachers, and thereby learn about child development.
Another very helpful approach is that adopted by the child psychotherapist Emil Jackson and others who are working in 10 secondary schools in Brent, north London. They are working with groups of both school staff and head teachers, sitting with them and helping them to reflect on their relationships and the way that it is working in their classes. Another way of getting that understanding of child development into the teaching workforce is in allowing them a space in which they can sit with professionals such as child psychotherapists, clinical psychologists and child psychiatrists, particularly to discuss their more problematic pupils with them. That is very effective and has many benefits. I apologise for already speaking for rather too long to the Committee and beg to move my amendment.
My Lords, briefly, I agree very much that in-service training—CPD, as we call it—is hugely important for the teachers in our schools. However, I would say that we currently do that. Every school has to have five days of training. In some schools we still call them Baker days, from somebody we know. My concern is that that training has to be of the highest calibre. As often as not, it is merely a day when people can sort other issues and training does take place.
Also, Ofsted inspections have to look at the quality of training in schools. In terms of observing teachers, every teacher—unless they are newly qualified—has to have set performance and management targets and, as part of that, classroom observations have to take place so that every teacher has to be observed, for a maximum of two lessons per week. To answer the noble Earl directly, training takes place in schools for five days a week, but I am always concerned about quality and teachers are observed at least twice a year.
My third and final observation is that the training days can, however, be quite disruptive to pupils because schools take them at different times. Would it not be great if all schools in an area took their training days at exactly the same time, so that parents could prepare for that and it would not be to the detriment of our pupils?
My Lords, I am happy to give strong support to Amendment 66, in the light of the remarks that the noble Lord has just made. However, I have my reservations about the practicability of Amendment 67.
My Lords, I wonder whether the noble Lord, Lord Lexden, could speak to his amendment in this group.
Thank you very much indeed, my Lords. Spare a kindly thought, if you will, for your comparatively new colleague who is speaking to his first amendment to legislation since he had the honour of joining your Lordships' House. This would have been my second amendment, if the nervous novice had not incompetently passed up the chance to move Amendment 65 at the end of proceedings on Monday, when we were caught up in a fascinating session on the GTC. Perhaps I may just mention that Amendment 65 was designed to tighten further the procedures for reporting serious misconduct and I hope that my noble friend will, in his usual benign fashion, be able to write to me about it.
I will turn, still as the nervous novice, to Amendment 73. The aim here is to explore the possibility of adding to the Bill a reference to partnership between maintained schools and independent schools. As before, I speak as a former general secretary of the Independent Schools Council. For generations, the best independent schools have reached out to maintained schools and their wider communities. The Independent Schools Council conducts detailed audits of these partnership activities. Nine out of every 10 ISC schools are involved in them. Sport, music and drama are the most widespread partnership activities.
Since the Second World War, the state has taken different approaches to the issue of partnership and the wider involvement of the independent sector in our education system. The Fleming scheme and then the assisted places scheme enabled talented children from less well-off families to attend independent schools. These are long gone and will not be repeated, but ambitious new schemes of partnership are in prospect. They include the participation of independent schools in the most important educational reform of our time—the academy movement, which features in a later amendment and in the new system of teaching schools.
Many independent schools have already applied for permission to become teaching schools. If they are successful, an increased percentage of the teaching workforce will get an opportunity to train in the independent sector. If this becomes the case, it is even more important that the sector should be able to take advantage of the opportunities that partnerships can bring and should not be unfairly excluded from the opportunities afforded to teachers in maintained schools. One thinks particularly of continual professional development, to which the noble Earl, Lord Listowel, made reference.
Whatever may happen in these exciting new areas, great effort should continue to be directed at ensuring the success of the independent/state school partnerships scheme, which was introduced by the previous Labour Government shortly after they took office in 1997 and made permanent by my noble friend Lady Morris of Yardley when she was Secretary of State. Relatively small amounts of public money have brought teachers and pupils together in enthusiastic partnership projects throughout the country. Since its creation, the ISSP programme has funded no fewer than 346 projects and allocated just short of £15 million—not a large sum but one that produces considerable benefits. The average value of a grant has been around £43,000. The largest single grant, of just over £500,000, was to a consortium of 18 London schools to enable them to offer gifted and talented provision in mathematics, science and modern languages over a number of years. I will not go into further detail; the Government produce full reports on the outcomes of partnership schemes. The current round includes 24 excellent projects.
It is against this successful background that I bring forward the amendment. Much has been achieved and it may be appropriate, in order to safeguard the partnership in future, to put it on a statutory basis.
I will not detain the Committee. I just wanted, in principle, to support the spirit behind these amendments. We have all talked about the quality of teaching being paramount and about ensuring that this goes beyond initial teacher training and involves continued access to good-quality continual professional development.
I particularly wanted to ask the Minister if he could refer in his reply to Amendment 66(1)(b), which makes reference to minimum qualifications in child development and behaviour. I declare an interest because I used to teach such subjects to postgraduate social work and probation students many years ago. More recently my son did a postgraduate certificate in education and is now, I am very pleased to say, a primary school teacher. I was shocked at the very small amount of time spent on child development and behaviour in his training. I know that it is a question of fitting a lot into a relatively small space of time—a year—but the lack of focus on cognitive development and language development in particular was astonishing. Has the Minister any plans to look at initial teacher training and at the focus, or lack of it, on child development? Will each higher education establishment decide that for itself in terms of the national curriculum, or will there be national guidelines to determine that at least a minimum amount of time should be spent on this important subject?
My Lords, I do not think that anyone could quarrel with the values behind the noble Earl’s amendment concerning CPD. They are excellent. I draw attention to two matters. Two years ago, I carried out some research on the amount of CPD available for SENCOs and other teachers of children with special needs. Alas, the picture is that very little is available. Some schools do it extraordinarily well and a few institutions do it very well indeed, but the picture across the country is very patchy. I went to one university to see an excellent MA course for special needs teachers. Seven people had received grants to go on it and three had received no grant at all. That was for the whole county. That picture was replicated across the country. Therefore, the noble Earl’s amendment must be aspirational in this area. We have an enormous amount of work to do.
The noble Lord, Lord Storey, made a very good point, but I suspect that it applies particularly to secondary schools. We all probably know of many primary schools where that level of training does not take place, and the 50 hours mentioned by the noble Earl would require, for every 10 teachers at the school, a half-time teacher to take the classes of those engaged in CPD. It is a difficult matter. Obviously one must support the aspirations behind the amendment, but it would be very difficult to do what the noble Earl wants straightaway.
My Lords, one disadvantage of the Grand Committee system is that, if one has an interest in the Chamber, it requires one to be in two places at the same time. I apologise for missing the introduction to the amendment as I needed to be in the Chamber.
The noble Baroness, Lady Hughes, has brought me to my feet. I was very struck by what she said about the shortage of training in behaviour management. In the 1980s, I chaired an inquiry into discipline in schools. One day, when I taught in an education college, I discovered I had lost the attention of my otherwise normally engaged adult trainee teachers, so I inquired why that was. They said that it was because they were having their first teaching practice the following week and that was all they could think about. I said, “It is not too difficult; you know three times as much as the best child about your subject and all you have to do is keep reasonable order and carry on”. They said, “Yes, but—”. I said, “Haven’t you been told anything about keeping reasonable order?”. “No”, they said, “not a word”.
I carried that with me into the inquiry and we inquired of all the training colleges in the country whether they taught behaviour management. They all said yes—and, after a comma, added, “as a cross-disciplinary subject”. I thought, “I know what that means”. We wrote to all the students who had been to the colleges in recent years and we had more than 1,000 replies. We discovered that only one college had actually successfully tackled the subject on its own and none of the others had taught it at all. It is very important because you can have someone with everything that the children need to know in his head but no means of getting it to them because he cannot get them to sit down and stop talking. It is as simple as that. It takes training, time and confidence. I could go on at great length about the different elements. Perhaps there is a means of instilling in the department and the Minister the necessity of not recognising training until it includes training in the management of behaviour in the classroom, because otherwise it will be inadequate.
Another matter I will raise concerns the second leg of the amendment in the name of the noble Earl, Lord Listowel. I see the impracticalities of it; the idea of having four consecutive hours is well beyond the reach of most places. Apart from anything else, who has a lesson for four hours? Children disperse and go to different lessons. The timetabling would be terrible.
I will address another question. Having heard the noble Baroness, Lady Hughes, I wonder whether my experience of 20 years ago is not still in date. We were very much aware of a phenomenon called “classroom isolation”. Teachers went in, shut the door and taught. They were alone with their problems, which they did not like to share because their colleagues would think that they were not succeeding. This provision would open the classroom door regularly. That may have changed, in which case I give three large cheers—but if it has not, something along the lines of the noble Lord’s amendment would be welcome.
My Lords, this might be a good opportunity to follow my noble friend, whom I think I first met 60 years ago. We are discussing best practice and experience, and it seems to me that the three amendments represent a lot of experience and best practice. However, I would be very doubtful as to whether any of the matters in the three amendments should be statutory or matters for the Secretary of State. If these matters cannot be dealt with within the education system itself, I do not think that they ever will be.
My Lords, perhaps I may return to the amendment tabled by the noble Lord, Lord Lexden, who has called himself a novice but was extremely cogent. The amendment refers to the,
“duty to promote academic partnership”.
I wonder whether that is what the noble Lord really means. I know that there are partnerships of all kinds between schools. He mentioned some in music and sport. I am slightly worried about the word “academic”. I am not challenging him but I want to highlight it.
My Lords, like other noble Lords, I think that the aspiration behind these amendments is to be applauded. The hours that might or might not be available are more of a problem. Whether there should be some tinkering with the hours required must be a matter for more careful thought on Report. Certainly, I am intrigued by the amendment in the name of the noble Lord, Lord Lexden, and there is a lot to be said for it.
We have got quite a lot of flexibility in how academies will develop. Whether there is room for this in the new schools, I do not know. At one of the schools I was at, the Fleming report approach worked extraordinarily well. There was no question of other students knowing about it at all. Everyone was very much on a par and no one knew who was entering in that way and who was not.
My question for the Minister is: who is in charge and are they sufficiently qualified to teach those who are being educated in prisons—young offenders and so on? There is a great deal of young offender education, which I know the Government want to put on a much more comprehensive basis and for many more hours. Under those circumstances, it would be good to know whether any of these amendments might apply.
My Lords, I am grateful to the noble Earl, Lord Listowel, for raising the issue of teacher quality and continuing professional development. We have heard that evidence from practitioners—which can be supported, as if that were needed, by a study by McKinsey—has found that the most successful education systems are characterised by strong systems of professional development, high levels of lesson observation, as the noble Earl argued, and continuing performance management. Also understood is the importance of teachers learning from the best and applying appropriate changes to their own teaching practice. Our approach to CPD and leadership training for teachers is based on that evidence. We are keen to improve the capacity of schools to take the lead for the training and development of teachers, and to create more opportunities for peer-to-peer training.
A key part of our overall proposals is the creation of a new network of teaching schools. This will help give outstanding schools the role of leading the training and professional development of teachers and head teachers so that all schools have access to high-quality professional and leadership development. We have also set up an independent review of teacher standards led by outstanding head teachers and teachers, whom we have asked to recommend to us new standards of competence and conduct for teachers. We hope that these standards will underpin our proposed reformed performance management system to make it easier for teachers to identify their development needs. The terms of reference for the standards review specifically require the standards to include the management of poor behaviour.
The noble Earl also suggested that teachers should have to be qualified in child development and behaviour management. I completely agree that these issues are of the utmost importance. Those points were made by the noble Baroness, Lady Hughes of Stretford, and by my noble friend Lord Elton. Training in relation to these issues is already included in all initial teacher training and trainees must demonstrate their knowledge and skills in these areas in order to attain qualified teacher status. However, I was struck by the points made by my noble friend and by the noble Baroness, Lady Hughes, and I will follow up those points with my honourable friend Mr Gibb, who is the Minister responsible for this area. I hope that the noble Earl will also be pleased to know that the Training and Development Agency for Schools has recently developed and put in place a package of support to improve training in behaviour management for all teachers.
The noble Earl also raised the important question of classroom observation. Again, I agree with him—as I think do all noble Lords—about the importance of that. We are keen to encourage more teachers to take part in school-based collaborative and peer-to-peer professional development and to get feedback on their own practice. That is one of the reasons why we are taking steps to remove the so-called three-hour limit that the current performance management regulations place on the amount of time that a teacher can be observed. I know that these are probing amendments but, as regards some of the specific suggestions, I agree with the points made by a number of noble Lords that a requirement to undertake a minimum amount of 50 hours of CPD is not the route down which we want to go, but I know that he was seeking to elucidate the broader points.
My noble friend Lord Lexden raised the important issue of partnership working between schools in the independent and maintained sectors. I am sure that we can all think of lots of examples where that is going on. I agree with him that it would be good to see even more of that. We are working with groups in the independent sector such as the Independent Schools Council and the independent state school partnership forum to explore how we can get more partnership working between schools in the independent and maintained sectors. As he said, schools from the independent sector can apply for teaching school designation. I think that three independent schools have already made such an application.
It is also the case that independent schools can apply to the education endowment fund that helps support new approaches to raise the attainment of disadvantaged pupils in maintained schools that are below the floor standard. I hope that will be another area that will please my noble friend, as we are trying to build closer relationships and break down some of these barriers that have divided the sectors. As regards his specific amendment, however, he may not be completely surprised to discover that a statutory and particularly prescriptive approach is not one to which I am attracted. However, I would certainly be very keen to do all that I can to bring the two sectors together.
The noble Baroness, Lady Howe, asked about the quality of offenders’ education. I am afraid that I am not able to reply to her specific points but I will follow that up with the Ministry of Justice to see whether we can get her an answer on those.
There is clearly broad agreement that raising the quality of teaching is important. I hope that I have reassured the noble Earl that there are plans in place to improve this aspect of the education system. We are keen to raise teacher quality by creating the conditions in which schools and teachers take responsibility for driving their own improvement, as has been discussed. In thanking the noble Earl very much for—
Perhaps I might ask one brief question about the second part of the amendment tabled by the noble Lord, Lord Lexden. If my reading is right, teachers in the independent sector would have access to training on the same terms as those in the state sector, which would mean that the state would pay for their professional development, or at least some elements of it. The two of us have had discussions about this over the past 15 years. I would be surprised if the Minister responded positively, but the fact that he has not responded at all has left a question mark in my mind about his views.
My view is that independent schools are independent, and I would not look to the taxpayer to pick up the tab. That is my reaction off the top of my head. It is probably the answer that the noble Baroness hoped for, even if I have disappointed my noble friend Lord Lexden. Some noble Lords will know that I am a great supporter of the independent sector, but the word “independent” is important in that regard.
I thank the noble Earl for giving us the chance to have this debate and ask him to withdraw his amendment.
My Lords, I am very encouraged by what my noble friend said in response to the amendments. Perhaps I may pick him up on a couple of points. He said some good things about the integration of the independent and state school sectors. Will he confirm that there is no longer any consideration of the idea of excluding teachers in independent schools from the main state teachers’ pension fund, which would make migration between the two sectors extremely difficult?
Secondly, there has been a history of initiatives, of which teaching schools is the latest, intended to develop and spread good practice. In my view such initiatives have always foundered on the lack of information flow between good schools and schools that need good advice. I will not detain the Committee with ideas on how that might be improved, but when the Minister is no longer under so much pressure, perhaps I might try to persuade him that the Government have a role in helping to set up structures to enable information to flow better than it does.
My Lords, before my noble friend responds to that—
I was not planning to.
Very well. I would be grateful if my noble friend would turn his mind again to the question of the integration of the independent and state sectors, and co-operation between the two. I take it that there would be no philosophical objection to the private sector buying into the provision of these facilities, which he rightly says should not be given away free.
My Lords, I thank the Minister warmly for his encouraging response, and I thank noble Lords for expressing sympathy at least for the principles behind the amendments—I am very grateful for that. I need to think more about costs, particularly for developing classroom observation. A number of noble Lords pointed out the cost of having teachers away from the class and of having teachers observing other teachers. I want to make sure that that is kept in mind.
Perhaps I might also briefly apologise for something that I said earlier in Committee about the early years workforce. I made some comments that I regret. It is widely recognised that capacity in that area is fairly low and I might have dwelt more on the very positive experience that I have had of meeting people who have a strong vocation in that area of work. With that, I beg leave to withdraw the amendment.
Amendment 66 withdrawn.
Amendment 67 not moved.
Clause 9 : Requirement for teachers in England to serve induction period
68: Clause 9, page 15, line 13, at end insert “including any duly accredited school overseas”
My Lords, Amendment 68 would extend the possibility of carrying out a statutory induction year to duly accredited schools abroad. The most important matter arising here is the manner in which such an assurance and accreditation would be carried out.
As some noble Lords may know, there is a Council of British International Schools—I have the honour of being its vice-president—which provides recognised accreditation for schools that conform to the statutory standards required of independent schools in England— namely, the independent schools standards regulations. Recently, the Secretary of State approved the Independent Schools Inspectorate, which works on terms agreed and authorised by the Government as an inspection body for British schools overseas. This has the happy result of creating circumstances in which many international schools can now meet the necessary requirements to offer induction to newly qualified teachers working in British schools abroad if the Government agree to such a development.
Extending the opportunity for teachers to complete their induction year overseas would have at least two direct benefits. First, it would encourage more schools abroad to seek accreditation through COBIS or by some other means on the clear basis that they meet the same standards as British schools in the United Kingdom. Secondly, it would allow teachers who choose to work abroad to return to the United Kingdom with full eligibility to teach in our schools. Under current arrangements, a teacher trained in a European Union country such as Romania can come to teach in England without needing to go through a probationary period, while a teacher who trained in England but left to teach abroad would not be able to teach in England when he or she returned, even after many years of service.
Now that British schools abroad can voluntarily request an inspection by the ISI and demonstrate that they are meeting the same standards as British schools in the United Kingdom, their inability to offer induction is a purely geographical problem. In some other cases, specifically those of Her Majesty’s forces schools in Cyprus and Germany, geography is deemed not to matter, presumably because there is a sufficient level of quality assurance from the United Kingdom. Now that kind of quality assurance can be guaranteed at accredited schools. I know that discussions on this matter between COBIS and the Department for Education are proceeding positively, along with parallel discussions with groups such as British Schools in the Middle East and the Federation of British International Schools in South East Asia. It would be good for Britain, and for British teachers and pupils at British schools abroad, if the recognised induction process could be offered in such schools.
Amendment 69 again draws on the experience of the independent sector, and in particular of the ISC's teacher induction panel, established and recognised by the Government in 2002, which last year acted as the appropriate body for more than 1,250 NQTs serving induction in 800 accredited independent schools. It is the largest appropriate body in the country. The panel believes very strongly that newly qualified teachers should be able to serve only one induction period, not least because such a small number fail—16 last year out of more than 29,000 teachers taking induction. That leads the panel to the clear conclusion that, after the established statutory induction period, the outcome is that only a tiny number are not suitable to teach.
The Government are gaining tremendous credit for increasing the rigour of the selection process for state-funded teacher training places, bringing the system closely into line with the very successful Teach First initiative. A revised and significantly reduced set of teaching standards that will underpin both the training and probationary years is in the pipeline.
Given that the new set of teacher standards will cover both years, teachers will be in the satisfactory position of having twice as much time to become familiar with, and proficient in, fewer standards. Thus, it would seem to make even less sense if new teachers who could not make the grade were allowed to retake induction. One year should be enough for experienced professionals to make a judgment on whether new teachers are able to cope with the demands of day-to-day school life. Just as we would expect new teachers who show insufficient knowledge and understanding to fail their initial teacher training, surely we should similarly expect those who are unable to maintain order in a way that meets the required induction standards to fail the statutory induction process without being able to extend that beyond the statutory period.
Finally, and briefly, Amendment 72 relates to a specific, but not unimportant, issue arising from the establishment of teaching schools, which are a very welcome development that will begin in September. The new networks of teaching schools will undoubtedly be successful in training their own staff, whether at initial teacher training level or over the statutory induction year but—and this is the issue—would it be altogether wise to allow these schools to become their own appropriate bodies responsible for validating the induction year and for the oversight of the quality assurance of the process? That is the issue that has led to my tabling Amendment 72.
My Lords, this amendment intrigues me, and it raises a question that I hope the Minister can answer. I hope that the proposal would not in any way affect the positive cross-border flow of teachers between Wales and England and between Scotland and England. There are benefits to both sides at the moment.
My Lords, I am very grateful to the noble Lord, Lord Lexden, for giving us the opportunity to look at the issue of induction periods for staff and to consider who should have to go through that induction period and on what grounds.
Amendment 68, which covers international schools—or any “duly accredited school overseas”—seems to make eminently good sense. Obviously, the underlying issue is accreditation, which means that we need to be sure that the schools that are authorised to perform the induction really are able to provide the quality of teaching to the standards that we demand. However, given that young people these days, as part of their natural early adulthood, move around the globe far more than we ever did in our day, I think that it is perfectly reasonable to expect that young people might want to start their teaching career outside the UK and to bring those skills and experiences directly back into the teaching profession in the UK. Therefore, I very much welcome the intention behind Amendment 68.
On the other hand, Amendment 69 seems rather ungenerous of the noble Lord, because it implies that people who fail their induction will somehow use some underhand way of sneaking back in, so to speak, through the backdoor. When I read the proposal in the Bill, I saw it as much more a facilitative thing. As we have touched on in previous debates, some who start their training when they are very young may not really know in what age group or subject they want to specialise. Therefore, I can well imagine a situation in which some young people, having started off their induction teaching one age group, realise that that age group is not for them and, halfway through the induction year, decide to switch, for example, from secondary to primary or vice versa. I would hope that the regulations that will be set out would enable that to happen. It is not about allowing poor teachers who have failed to get back in; allowing that flexibility for young people to make different career choices seems eminently sensible. Therefore, I support the intent in the original Bill.
My third point is a question as much as anything. Again, I am very grateful to the noble Lord, Lord Lexden, for drawing this to our attention. It concerns the issue of what is a relevant school, and relates to new Section 135A(1)(a) under Amendment 68. In all this, it is not clear to me where academies fit in. “A relevant school” is defined as a school maintained by a local authority. Are we saying that you cannot do an induction in an academy or that if you qualify and go straight to work in an academy, you do not have to have done an induction period but can just train straight off? That needs to be clarified much more clearly than is set out here.
I read the Bill to mean that academies are excluded, although in a letter the noble Lord states that Clause 8, “Functions of the Secretary of State in relation to teachers”, and Clause 9 on induction periods for teachers continue to apply to academies. But I would not read that from the legislation as set out here. I know that I am raising a bigger issue about what in the Bill relates to academies and what does not. Perhaps the Minister can clarify whether academies are covered by this when he responds.
My Lords, I support my noble friend’s first amendment. Making sure that British education around the world is of high quality does Britain a great deal of good one way or another. There are many countries where our education system comes under far less criticism than it does here and where our qualifications are very highly regarded. All the work that we put in here to make sure that they are even better is important. Now that the system of inspection here, with which we are happy, reaches out to some of those schools, we should acknowledge that by extending to those schools the abilities in terms of raising young teachers that we would accord to them if they were in the UK. They are schools following the British system, using British qualifications and mostly British teachers. I see no reason why we should cut them out of that.
I disagree with my noble friend on his second amendment from two points of view. First, if only 15 or 16 people are failing, why are there so few? What kind of rigorous examination has so few people failing? It really cannot be a mark of quality that so few people fail their induction year. I cannot believe that, as set up now, the processes that allow someone to begin an induction year are so perfect that only that small proportion should fail.
Secondly, I want to argue against the premise that people who fail should not be allowed to retry. I know one of those 15 people and I have had a long conversation with him as to why he failed. In my view, the basic reason is that he wanted to make maths fun and would not put up with the Gradgrind methods that he was told to use. It was silly of him to argue. He should have just knuckled down and gone through it for a year. Then he would have been free to teach and to explore his own way. But he did not because he is a headstrong young man and full of what strikes me to be very good ideas as to how to enliven a subject that I have always enjoyed but many people have not. Where such people have come up against what in my mind is the wrong verdict or have tackled things in the wrong way, they should be given another chance. I look at this in both ways: a lot more people should be failing and they should be given a second chance.
I thank my noble friend Lord Lexden for giving us this opportunity to talk about induction, which is an important part of ensuring we have good teachers in our schools. Induction is like a probationary period. It provides a statutory national framework for supporting new teachers to make the transition from initial teacher training to their career in teaching. It ensures that NQTs receive support, training and development. At the end of this time, new teachers have to pass an assessment and can then become full members of the teaching profession. Before I come on to the amendments in detail, let me set out briefly some of what the Government are doing to get excellent teachers into the profession, because induction is at the end of the process and needs to be viewed in that context.
Our initial teacher training strategy, which we recently launched, includes the following measures: we will attract the best graduates by offering one-off training bursaries of up to £20,000; we will double the size of Teach First, a scheme that has been highly successful in attracting graduates from some of our best universities into teaching; we will raise the bar for entry to teaching by funding training only for those with at least a second class degree, and by introducing literacy and numeracy entry tests; we will focus teacher training better on the skills that teachers need most, including managing behaviour and teaching early reading, items which we have already touched on in this Committee; and, we will give more schools a strong role in the recruitment and training of the trainees that they will go on to employ.
Alongside these reforms, we have been reviewing teacher standards, including those that trainee teachers must meet. We expect shortly to produce new, clear standards that raise the bar for newly qualified teachers who enter induction, so the Government are doing much—
Given that the Minister raised the background to this debate, which I am grateful to her for doing, could she clarify one point for me? In terms of the bursaries being proposed in the paper, can the Minister give us her view of the impression given by awarding up to £20,000 per secondary school priority subject, yet so much less for primary school teaching? Is it not really important that we get things right in primaries so that people can become successful in secondaries, and should the bursaries not reflect that?
Some of this is to do with shortages of teachers. There are more shortages of secondary school teachers, which is why those priorities have been set. However, we would entirely agree with what the noble Lord has said about the real importance of primary school teaching and of introducing an ethos of learning, and of the fun of learning, at a very early stage. Primary school teachers are of the utmost importance in that. The Government are doing much to improve the quality of those who enter induction in the first place but, as my noble friend Lord Lexden has said, induction itself is of great importance. It helps NQTs to handle the fresh challenges they face in their first teaching post, to strengthen their skills and to improve their teaching.
On Amendment 69 it is the case, under current regulations, that NQTs may serve induction only once—a point that has been picked up by noble Lords. In answer to the noble Baroness, Lady Jones, it is a fact that the previous Government’s regulations prescribed only one induction period. We have reviewed that position and decided to continue it. Of course, if things change we can always review the position but that is what we are holding to at the moment. Recent discussions with those who work with induction arrangements have supported the current position, reflecting the important points that my noble friend Lord Lexden has made today. We do not plan to allow NQTs to serve more than one induction period. It is of course a key element of ensuring that only those NQTs who meet the required standards are permitted to continue to teach in maintained schools, and we would wish to maintain that.
In answer to the point by the noble Baroness, Lady Jones, about academies, they are classified as independent schools and as such they may choose to offer statutory induction, although they are not required to do so. We will continue that position through regulations. My noble friend Lord Lexden raised an important issue—
Can the Minister clarify that? If you do your initial teacher training and choose to teach in an academy, if there is no requirement to do an induction year, how do you get your complete teacher training certificate? Is it not needed? I thought every teacher had to have an ITT qualification and undergo a successful period of induction. What is the position for a teacher going into an academy? It is not quite clear.
They are classified as independent schools, so they come under those criteria.
I understand that. It is the teacher I am concerned about. It is just a scenario. The teacher completes a period of initial teacher training for a year as a PGCE, then goes into an academy and does not have to serve an induction year. What happens? I am not sure how they complete their qualification.
I apologise to the noble Baroness. I thought we had switched to another subject. A teacher who wishes to teach in a maintained school would have to have gone through a period of induction, but I had moved on to the teaching schools.
If the teacher finishes their initial teacher training and then gets a job in an academy, surely the academy has an obligation to carry out their induction year. Otherwise, they cannot qualify at the end of it.
Academies can choose. It is a choice, as it is with independent schools.
That is terrible.
I do not want to delay the Committee, but this is really important. There is no requirement on academies. I can understand there being no requirement on academies if the number of academies is small, but if, as it would appear, we are starting to move towards a vision of every secondary school being an academy, how can we ever be sure that we have enough induction places for the workforce that we need to keep continuing to recruit?
As I understand this—I may be wrong—teachers’ training is not fully validated until they have successfully completed an induction period. If the choice of whether there is an induction period rests with the school or academy and is not a right for the teacher, there may be a large number of people going into those situations whose training is never finally completed and validated if they have not done a satisfactory induction period.
My Lords, we seem to have hit an area where it would be helpful if we take this away, look at the detail of the arrangements and write to members of the Committee. The position at the moment appears to lack some clarity. We will write.
When the Minister writes, will she tell us the principle behind this? Some of us are anxious that we are going to move towards a position where anyone can teach in any school without appropriate qualifications. We hope that is not the Government’s position and so look forward to that being clarified in the Minister’s reply.
We will sort that out in the letter because that is certainly not the intention.
Could the Minister also explain what the situation will be in so-called free schools where, as I understand it, people can teach without qualifications?
They are independent schools, so the freedoms that have pertained for some time in the independent sector would apply to free schools.
But the independent sector does not have unqualified teachers.
They do not need NQT status in free schools or independent schools. That is not a change.
I am sorry to dwell on this, but I want to pick up the point that the noble Baroness made earlier about induction periods. She has confused me because the legislation states that regulations will be made,
“as to the number of induction periods that a person may serve, and the circumstances in which a person may serve more than one induction period”.
As I said in my original speech, that sounds perfectly sensible. The Government are now saying that they have already decided, and that it is one. The legislation implies a level of flexibility that the Minister is now saying does not exist. It is one induction period—end of story.
Both the current and proposed primary legislation enable the Government to allow more than one induction period to be served. However, under the previous Government this was not the case, and this Government have decided to continue the practice of the previous Government, so there has not been a change and the facility exists, if required.
Moving on, my noble friend Lord Lexden raised an important issue relating to induction in teaching schools. He indentifies a risk in the possibility of the same teaching school providing an individual’s initial teacher training and hosting their induction. I agree with my noble friend when he says that we must not allow this to be a loophole through which poorly trained teachers can enter the system. I can reassure your Lordships that only schools of the highest quality will be able to become teaching schools that provide ITT. They will need to be judged outstanding by Ofsted and pass a rigorous assessment, overseen by the National College, in order to become a teaching school. They will then need to go through the robust accreditation process that all ITT providers currently go through. If they are successful, their ITT provision will be subject to Ofsted inspection. There will be safeguards on the quality of induction in teaching schools by means of the independent appropriate body that oversees induction. I know we will come on to talk about that body in more detail when we move on to the next amendment, tabled by my noble friend, Baroness Perry of Southwark.
I beg the Minister’s pardon for interrupting her, but one point that I know concerns some head teachers very much is the status of those primary schools that currently have a status as a sort of teaching school. The head teacher whom I have in mind works in a very challenging area. Her school’s results in terms of educational attainment may not be so high, but it is recognised that she is doing a fantastic job in a very difficult area, where she works with some very challenged families. The concern is that, when the Government are setting parameters for the new teaching schools, they may not take enough cognisance of the huge progress that these head teachers have made with their pupils and will keep more in mind the bare bones of achievement in terms of academic attainment. I would be grateful if the Minister could reassure me that this will not be the case and that head teachers who make a huge difference to children coming from difficult challenging background will not be excluded from the teaching schools initiative.
My Lords, the schools will need to be judged outstanding by Ofsted, so there will be levels of academic attainment within that. However, we are in no way underrating the value of schools such as the one to which the noble Earl has referred. They may well be able, say, to work in partnership with a school that was rated outstanding, bringing the special skills they have developed in those very challenging schools to bear on the induction period.
Finally, let me turn to the issue of induction at British schools overseas, which was my noble friend’s other amendment. The British education sector overseas is growing rapidly. It appeals both to English-speaking expatriates and to local parents in many parts of the world, who want their children to have an education instilling British values and ethos. For those reasons, I agree with the noble Lord that British schools abroad should be able to offer induction.
In response to the question from the noble Lord, Lord Sutherland of Houndwood, there will be no impact at all on current arrangements between England and Wales and between England and Scotland—those will not change.
The good news is that primary legislation does in fact already allow this. These schools are legally independent schools, and independent schools are able to offer induction to their NQTs if they choose to do so, providing the teacher has QTS and the school can provide a suitable post. However, there is currently a legal barrier to this happening, in secondary legislation. Following our review of induction arrangements, I have therefore asked officials to ensure that proposed amendments to the induction regulations will include changes that allow certain British schools abroad—those that have been inspected under the British schools overseas arrangements and accredited by COBIS or other reputable British schools overseas organisations—to offer statutory induction to their NQTs.
I hope that my remarks have provided some reassurance to my noble friend Lord Lexden, and that he will feel able to withdraw his amendment.
My Lords, since the noble Baroness is in writing mood, will she enlarge slightly on the questions that I asked in regard to the second amendment of the noble Lord, Lord Lexden? If we are focusing hard on trying to get high-quality teachers, we need to be careful to ensure that we have not built into the system disincentives to getting rid of teachers who are not up to the grade. It was always the problem with hanging someone for stealing a sheep that juries would never convict. It seems to me that we have a similar situation here, as the penalty for failing an induction year is so harsh—the person may never teach in a maintained school again. Most people strain to get these individuals through their induction year and to pass them just because the penalty is so harsh rather than because they have done well enough to be passed into the teaching profession with all flags flying. Therefore, I would like to understand the logic behind the Government’s decision to keep it as “once only” rather than allowing a second chance.
Another class of people who deserve a second chance is those who fall over their shoelaces in the first term and lose the respect of children. They are never going to get that back in that school and will never get a fair trial. They need to go to another school and start again, where you may get a very good teacher out of the experience.
My Lords, I am sorry to trouble the Committee further, but I am still a little worried by the Minister’s response. I was grateful for what she said but I can see a situation where excellent head teachers working extremely hard in very challenging areas producing outstanding results do not get the credit due to them for doing that. It is far easier to get high academic results in a school in a leafy suburb than in an inner-city school. We risk denying our future teachers an experience of learning from an inspirational head in an inner city if these plans are not carefully balanced to ensure that there is a broad base of experience in these teaching schools and they are not situated predominantly in areas where it is easier to get high educational attainment. However, we need to aim always to get the highest educational attainment for all our children.
My Lords, my three amendments have precipitated a discussion on induction that has ranged rather more widely than I anticipated. I thank all those who have contributed to this wide-ranging discussion, including my noble friend Lord Lucas who rebuked me for my mean-mindedness. I will work on it and seek to correct it. I also thank the noble Baroness who spoke on behalf of the Government for the many reassurances that she gave, particularly for her comments about the expanded arrangements now in contemplation so that induction can be undertaken in British schools abroad. I beg leave to withdraw the amendment.
Amendment 68 withdrawn.
Amendments 69 and 70 not moved.
71: Clause 9, page 16, line 41, after “regulations” insert “must provide for an appropriate body to receive a report from a person who is independent of the school and local authority, has successful teaching experience and who has observed the teacher during the induction period on more than one occasion and”
My Lords, this amendment continues with the theme of induction and deals with the rather important issue of who assesses whether the teacher has or has not successfully completed the induction year. The Bill is rather misty on who will do this assessment. New Section 135A(2)(h) simply requires the head teacher ,
“to make a recommendation to the appropriate body”.
My amendment would allow a person who is independent of the school and the local authority to make the judgment. They will be well qualified to make it because they have successful teaching experience and will not pop in just once to make the assessment but will observe the teacher during the induction period on more than one occasion. We all know that you can have one bad lesson and then one sparkling one that goes terribly well, so it is important to see the teacher on more than one occasion.
This is very important, not only because, as we all agreed in the previous debate, induction is a vital part of the training of the teacher, but because it is sometimes very difficult to make an assessment. As I know from long observation and experience, the college or university where the students do their initial training tends to judge them much more on their academic achievement than on their practical performance. Also, it will be very reluctant for all sorts of reasons that I do not need to enumerate to fail many of its students. Now we move on to the school. If it is left to the school and the head, there is also a very real difficulty. The young teacher will have been a colleague for a year, and the school will be very reluctant to make a harsh judgment, even when it has grave reservations about her or his ability to perform well. Therefore, we are left with the crucial option of bringing in a well qualified person who will observe on several occasions.
I did not speak in the previous debate but I hope that even those who have not done too well in their first year might nevertheless have their induction period extended, as is suggested by new Clause 135A(2)(g). Like my noble friend Lord Elton, I have seen many teachers flounder in one school and do very well in the next. Crucially, we have heard that only 15 or 16 fail every year. That is simply not enough. We are still letting through a tiny minority of people who are not born to be teachers and who are not very happy in the teaching profession. For their sake, as well as for the sake of the thousands of children whom they may influence in their career, it is important that they are given at the very beginning the chance to say, “Teaching is not for me, so I will go into another profession”—rather than, out of the kindness of our hearts, just swinging them through. It is pretty miserable to spend the rest of your career doing a job that you are not good at, that you do not particularly enjoy and in which you struggle every day. The red light should come on at a very early stage and I hope the amendment will go some way to making that possible. I beg to move.
My Lords, I will speak briefly. In days gone by, the inspector called. They would sit and watch newly qualified or probationary teachers, as they were called in those days, and make a decision. We have moved on considerably.
My current experience—I have a newly qualified teacher—is that it is a very detailed process. It is not just about one classroom observation. The newly qualified teacher will have a mentor in school who will guide them through any issues or concerns that they have. Each term, they will be observed on average two or three times. At the end of each term, a detailed form will be completed, which will have to be signed by the mentor and head teacher, both of whom will also provide comments. The newly qualified teacher can give an input into how they feel the first term has gone. That would be in partnership with the local authority and the local authority would then receive that form, which would be completed each term, three times a year. The newly qualified teacher would have to be successful in each of those terms, so it is not just a question of the head teacher observing the newly qualified teacher; other people would be involved in that as well. It would not just be about literacy and numeracy, but it might be that the person responsible for science in the school would observe a class that the newly qualified teacher was taking.
Currently, it is a very rigorous and robust process. I have no objection to an outside inspector or independent person coming in, but I want to assure my noble friend that this current process is very worthwhile.
Perhaps I could ask a question as part of my response to these amendments. I was going to raise this in the previous debate. We talk about the figure of 15 who failed their initial teacher training, which appears to be very low. I am making an assumption that the selection procedure is not so perfect that it has this right. Before we bandy that figure around, perhaps the Minister might let us know how many students drop out, because sometimes there is a managed drop-out. I genuinely do not know the answer to that. That figure might also be very low. It might be useful to have a picture of how many start and finish as well as the statistic of the 15.
The noble Lord, Lord Storey, reminds me of a meeting that I had with the noble Baroness, Lady Walmsley, and some head teachers a year or so ago. One subject that came up was mentoring. I am not sure whether it was the mentoring of newly qualified teachers or teachers in initial training. The head teachers were making the point to us that it is very important that the quality of their mentors is right. I forget the gradations, but perhaps they are outstanding, good and satisfactory teachers. The head teachers regretted the fact that sometimes teachers in initial training might be given just a satisfactory mentor when they should have a good or outstanding mentor. They may have been saying that they should have outstanding mentors all the time. Perhaps the Minister will bear that in mind. One way to improve outcomes in this area might be to ensure, more consistently, that the mentors are of the highest standard for people in initial training or their first year.
My Lords, as was clear in the previous group of amendments, I very much agree with my noble friend Lady Perry that we have to encourage the best teachers into the profession and support their professional development. I understand that the intention of her amendment is to ensure that only those teachers who are good enough to pass the induction should become full members of the teaching profession. I support that aim.
We have talked a little about the numbers. The figure of 15 is the correct figure but in response to the question from the noble Baroness, Lady Morris of Yardley, in terms of managed moves the figure is something like 10 per cent. That lends some credence to the point of the noble Baroness. Part of the process is that people drop out—the 15 who do not make it—but there are others who do not make it in a less apparent way.
Perhaps I can briefly set out the current arrangements for induction, although I thought that my noble friend Lord Storey gave some helpful observations on that. As he said, each NQT is provided with a tutor who is an experienced qualified teacher and their role is to mentor the NQT on a day-to-day basis, to observe their teaching practice throughout the year and to give them feedback. They contribute to formal assessments of NQTs, which take place each term. At the end of the year the NQT is judged on whether they have met the required standard to become a full member of the teaching profession. Schools do not make that final judgment; they have to work with the independent appropriate body, which has overall responsibility for ensuring that the induction is fair and rigorous and that the NQT gets the appropriate support. It can visit the school, speak to the head teacher and to NQTs to check up on progress. The independent appropriate body makes the final decision on whether the required standards are met, based on the assessments that have taken place over the year and the recommendation of the head teacher.
Arguably, no set of arrangements is absolutely perfect. We are currently looking at induction and, if my noble friend has any individual cases of appropriate bodies not maintaining the required standards, I would be keen to meet her to discuss the issue further. In any case, it might be helpful if I could arrange a meeting for her with the Schools Minister with responsibility for this area just so that we can tease out some of these issues a bit further.
Induction arrangements are just one element of the Government’s overall reforms, the key aim of which is to raise the quality of new entrants by toughening entry requirements and by investing more in attracting the best graduates. We hope that that will improve the quality of NQTs entering induction in the first place, which seems to me to be the key issue. I believe that, taken together, our reforms are more likely to achieve the increase in quality that we all seek than would be achieved by the introduction of a new check—to check the checkers, as it were—into arrangements that already feature an independent appropriate body. However, I understand the points that my noble friend made and I would welcome the opportunity to discuss the matter further by asking that she raise her concerns with the appropriate Minister. On that basis, I hope that she will feel able to withdraw her amendment.
My Lords, before the Minister sits down, would he accept that there is a difference between a system in which, by and large, those who make the assessment—that is, the referees—are either coaches or mentors or colleagues and a system in which the independent referee is not also a coach? The difficulty in that relationship is, I think, the point of the amendment.
Yes, it would be rather like driving tests being administered by the driving instructor.
Can I trouble the Minister just a little further? I was grateful for his response about ensuring that there is a high-quality mentor for trainees. If he had a little bit of time to drop me a note on how the mentors will be selected—both for the teachers in initial teacher training and for those in the qualified teacher year—I would be grateful to him for that.
I, too, apologise for intervening at this point, but there is one issue on which I would be grateful to have a little bit of clarification. My noble friend the Minister talked about the substantial changes that are being made in teacher training provision. The biggest change is the switch from training teachers in ITT settings, within a higher education environment, to training teachers within schools. Am I right in thinking that there is no legislation—certainly there is nothing in the Bill—that covers that change? Does it require legislation?
I do not believe that legislation is required for that, but we will come on to that issue in a later group, where we have some specific amendments on the role of the HEIs.
My Lords, I thank the Minister very much for his characteristically generous response and for his understanding of the point that is being made. I am particularly grateful to the noble Lord, Lord Sutherland, for making the point that I was trying to make, which is that those who have been colleagues, coaches and mentors—and all the other good things that we must have during induction—are not the best people to make a final, and perhaps rather harsh, judgment at the end of the induction. I feel that having an independent judgment is important.
However, in view of the Minister’s generous response to have further discussions, I beg leave to withdraw the amendment.
Amendment 71 withdrawn.
Amendments 72 and 73 not moved.
Clause 9 agreed.
Clauses 10 and 11 agreed.
Schedule 2 agreed.
Clause 12 : Abolition of the GTCE: transfer schemes
Amendments 73A and 73B not moved.
Clause 12 agreed.
Schedule 3 : Abolition of the GTCE: transfer schemes
Amendments 73C and 73D not moved.
Schedule 3 agreed.
Clause 13 : Restrictions on reporting alleged offences by teachers
73E: Clause 13, page 20, line 6, after “teacher” insert “or other member of staff”
Clause 13 introduces into law restrictions on the reporting of alleged offences by a teacher in a school up to the point at which that teacher is charged, if they are charged, and covers matters concerning the possible breach of those reporting restrictions and possible defences of those breaches. Noble Lords will know that this has long been an issue and that teachers organisations, and head teachers organisations, to some extent, have talked about it. In fact, the previous Government responded positively to the evidence put before them but decided not to legislate. Instead, they revised the guidance issued to the Association of Chief Police Officers advising police forces not to release the identity of individuals to the media prior to formal charges being brought. The Labour Government also brought in procedures to speed up the processes of investigation because that is another important issue.
I think the general view is that those two measures have had a significant impact and that the problem of reporting of—often very pernicious—allegations about teachers and people in schools has significantly gone away. However, the Government have decided to legislate and, because we are generally sympathetic to the arguments put forward, we do not oppose the legislation. What we are concerned about is that, having decided to legislate, which is a very important step because it is curtailing the freedom of the press by statute, the Government have decided to do so for teachers only. If you are going to legislate on such an important matter rather than go down the route that we have already gone down, which has had a great impact on the behaviour of the media through self-regulation, we have to be very clear about the principles on which you are legislating, about the evidence that is the basis for that legislation and, therefore, on where you draw the line. Those are the key issues that the Government have to speak to us about today to justify why they think the legislation is appropriate for teachers and for teachers only.
I think we all accept that if people are working with children, particularly in a situation such as a school where it is very concentrated and there are large numbers of children, they can suffer extreme difficulties from unproven allegations, even if no charges are eventually laid because it affects the way they do their job, it generates mistrust from parents and people are often assumed to be guilty, even if the police decide there is no substance to the allegations and charges are not brought. We have stories from the past of longer term difficulties when people’s employability has been adversely affected by these kinds of allegations.
We are also aware that it is not just teachers who are in situations where those kinds of allegations can be made. Changes in schools, particularly over the past 10 years or so, have made this very significant. There is a wide range of people now in schools who are doing very similar things to teachers in so far as they are in close contact with children and are often dealing with very challenging children with special educational needs or behavioural difficulties. It is not only teachers who are supervising children. For example, support staff supervise children in non-classroom situations in the school, in the playground, after school and in after-school clubs. It will not necessarily be teachers in those situations. Clearly, those same arguments apply in sixth-form colleges and further education colleges. In a previous day in Committee, I think that we heard the noble Baroness, Lady Sharp, advise us when we were discussing searches that it would probably be security staff in colleges who would undertake searches, not the qualified further education lecturers. The reach of this provision is therefore very restricted.
Also, as I understand from reading it, the provision would not include—the Minister will correct me if I am wrong—people who are teachers but who are providing supply cover, or who are on a temporary contract, or who are teaching in an off-site situation. As it stands, in its very limited reach this proposal does not relate to the real world in schools at the moment or to the wide range of people who are dealing in very close contact with children. In the other place, the justification which the Minister there gave for the limited reach of the Government’s proposal was that they had evidence of the impact on teachers but not to support the application of the legislation to school support staff, or to teachers in sixth-form or FE colleges. In fact, UNISON has carried out its own survey using the same question that the Association of Teachers and Lecturers used, which has provided some of the evidence to support a case for teachers.
The results of that survey showed that nearly half of all the respondents had experience of support staff in schools facing allegations from pupils, 33 per cent of which resulted in an investigation. Twenty per cent of those accused were suspended and 15 per cent were reported to the police, so there seems to be a substantial body of evidence to suggest that these are also issues for significant numbers of school staff. Similarly, in relation to lecturers and other staff at FE colleges, the Association of School and College Leaders has also provided a wealth of evidence and case studies, some of which were rehearsed in some detail in Committee in the other place. I will not detain this Committee now with those examples, as they can be read in the Hansard report from that Committee, but there is evidence of lecturers in sixth-form and FE colleges experiencing the same kind of problem.
My Amendments 73E to 73H, 73J and 73K would therefore simply extend the Government's proposals on reporting restrictions on allegations, which cover the period up to the point only of the person’s being charged, to non-teaching school staff and to lecturers in sixth-form and further education colleges. The noble Baroness, Lady Walmsley, has some amendments in this group as well and I look forward to hearing her arguments. I think she is supporting the extension to sixth form and FE lecturers with her Amendment 75, but in her Amendment 75A she is proposing “Wait and see—let's look again in two years” about school support staff.
I simply conclude with the points that I made right at the beginning: if we are going down this road of applying legislation to restrict the reporting in the media of certain allegations, it has to be on the basis of principle and of evidence. In that regard, I cannot see that the case can be made only for teachers. The Government have got themselves potentially in a difficult position, because I could of course go further. I could talk about people working in residential care and in children's homes, or about people working in a whole variety of situations—in young offender institutions, for example. To be quite honest, that is the problem that the Government have created for themselves here. Understandably, once you start to use legislation, other groups will say, “We are in the same situation so this should apply to us too”.
This is an education Bill and, for the moment, I shall not use those arguments to that extent. I feel that there is no justification for limiting these provisions to teachers only and, as regards education, these other groups of staff ought to be covered by the same protections. I beg to move Amendment 73E.
This is not the best day for British journalism, I fear, so I almost hesitate to declare an interest as a director of the Telegraph Media Group and chairman of the Press Standards Board of Finance. I spoke on these matters at Second Reading, expressing my concern that Clause 13 is unworkable, unnecessary, has huge, significant ramifications for open justice, sets a damaging precedent and, above all, is based on scant evidence. I am very glad that the noble Baroness raised the issue of evidence because it is very important to this clause.
Of course, it is appalling if anyone, not just a teacher, is falsely accused of a crime, but the transparent pursuit of justice is vital too, as it is part of the constitutional compact between the courts, the media and the public. Justice can be effective only if it is seen to be done, and that is why the media is always opposed to reporting restrictions, except in the most pressing circumstances and where there is overwhelming evidence of need. I fear that my interpretation of the research and data in this area is that that evidence is incredibly thin.
On Monday, we heard from the noble Lord, Lord Puttnam, about the evidence-based approach to policy. He said,
“Creating policy involves learning lessons from the past and gathering evidence from the present”.—[Official Report, 4/7/11; col. GC 52.]
I could not agree more. The best evidence that we have is from the Department for Children, Schools and Families’ submission to the 2009 Select Committee inquiry into allegations against school staff, which concluded after careful analysis that there was no case for teacher anonymity. Subsequently, I have checked with some other bodies that might know about it.
It is important that the Committee looks at the issue of evidence. I have talked to the Press Complaints Commission, which has other issues on its mind at the moment, but it looked at the cases it had dealt with over the past four years and could find only two relating to teacher anonymity where there may have been a breach of the industry’s code. The secretary of the code committee of the Press Complaints Commission confirmed to me that there had been no representations from teachers' organisations to the code committee to deal with this issue. I talked to Mr Tony Jaffa of Foot Anstey, one of the leading solicitors in the country dealing with local media, who wrote to me to say that:
“My colleagues and I do not have any recollection of any regional paper ever having received a complaint from a teacher in this context … We have no evidence to support the proposed change … If this were a real problem I would expect to have seen post-publication complaints, PCC complaints, and/or libel claims. We have not seen any of these”.
The noble Baroness referred to a UNISON survey, which was very similar to the results of the survey conducted by the Association of Teachers and Lecturers, which points to a high number of allegations that have been made against staff. Among that huge potential number, the number of actual press reports is tiny. This clause is all about restrictions on the media, so we have to look at the number of press reports that follow, not at the number of allegations made within schools and further education institutions. If there is precious little evidence of a problem relating to schools, I can find even less rationale for extending this to further education institutions and to other staff as a number of these amendments seek to do. I certainly cannot find any in the 2009 Select Committee inquiry.
The other point of great concern to me is precedent. At Second Reading, I warned that Clause 13 was,
“the thin end of a wedge that will lead inexorably to much wider reporting restrictions”,—[Official Report, 14/6/11; col. 734.]
that would have a profound impact on the local media in particular. If we extend the terms of Clause 13 beyond teachers to other members of staff and to further education institutions, as Amendment 73 and subsequent amendments seek to do, as the noble Baroness has said, why stop there? How do the Government explain where the dividing line is, especially when they have already said, as they did in the schools White Paper, The Importance of Teaching, that they would,
“consider whether these measures should also be applied to the wider children's workforce”?
In 2009, a survey among local authorities found that allegations—I make the point that it is allegations and not media reports—were an issue across a number of employment sectors involving children, including social care, health care, foster carers and the police. That already brings another significant potential group of people within this ever-expanding set of potential reporting restrictions. As the noble Baroness said, there are other careers where individuals are sometimes alone with children. If we accept the extensions to Clause 13, what is the logic in excluding them? The list could include hotel staff, babysitters, dentists, vicars, scout masters and museum staff. I do not know where it would end.
We can already see it happening in other areas, which is why this clause and this debate are so important. The General Medical Council has suggested that open hearings should be replaced by private discussion between the GMC and a doctor intended to reach mutual agreement on,
“the measures necessary to protect the public without the need to refer the case to a public hearing”.
That would apply even in the most serious cases—possibly involving children—that end up in the suspension or removal of the doctor from the register.
It is not fanciful to see that unless we draw a strict line here, we will end up with a wide range of reporting restrictions fundamentally affecting the rights of children that, in effect, usher in a new age of secrecy and cover-up where crimes against children are concerned. As the noble Baroness has said, we interfere with media freedoms in this area at our peril, not because of their impact on the media but because of the impact on the justice system. That is why the groups of people covered by this legislation should not be extended but should be kept as tight as possible.
Finally, I know that my noble friend will speak to Amendment 75A, which is on a mandatory review of reporting restrictions. I am all in favour of a review of the efficacy of the legislation eventually passed in this area because I genuinely believe that it will prove to be unworkable, particularly with regard to issues to which we will turn in the next group. A review must be even-handed and must take evidence from all those involved; that is, the media, children’s charities, the police and so on. As I read it, the amendment seeks to direct such a review even before there is any evidence, which cannot be right. By all means, let us look at this again if this legislation reaches the statute book. I think that it will prove to be essential, but it needs to be a proper and independent review.
The noble Lord seems to be arguing against any reporting restrictions. Is he arguing against the inclusion of Clause 13 or for the Government’s case that this should be restricted to teachers? If so, given the nature of his arguments, how would he justify this for teachers and for teachers only?
My Lords, that is a very easy question to deal with. I am opposed to the inclusion of Clause 13 in its entirety. That was the basis of the remarks I made at Second Reading. However, I sensed the mood of the House on that day, and of your Lordships, that it is unlikely that the removal of Clause 13 will ever happen. These amendments, and amendments to which we will come subsequently, are meant to deal with the reality of the situation.
My Lords, these Benches certainly welcome Clause 13. Our Amendment 75 extends Clause 13 to include sixth-form colleges and colleges of FE. In the interest of moving on, I shall not repeat most of the arguments already made, although I will add one point. As a result of the Woolf report, staff in colleges of FE will teach young people aged between 14 and 16 on vocational courses. This is to be applauded as CFEs are far better places to deliver vocational courses, but it means that, for the first time, much younger pupils will be in those colleges. They deserve the same level of protection as afforded by Clause 13. This provision adds a bit more meat to that.
Amendment 75A calls for a report on the whole process two years down the line to see whether the process has worked, to collect data and, on the basis of that evidence, to consider extending the reporting restrictions to all staff in schools and FE colleges. Will the Minister consider this extension of the provisions in Clause 13 to include colleagues in FE colleges and review the process after two years to extend it further to other staff dealing with students in colleges and schools?
I shall speak briefly to this amendment and to this clause. I am motivated in large part by the speech made by the noble Lord, Lord Black of Brentwood. I wrestled with this subject as a Minister and came under a lot of pressure to bring in a clause such as Clause 13. My judgment at the time was that it would be a slippery slope—the slippery slope that has been described by the noble Lord—and that it would start to include an awful lot of people. The NSPCC put the argument very strongly that we should not go down the road in Clause 13 and that it would be better for children if we put pressure on the enforcement authorities to get on with it and bring cases to justice where there was a case to be put. I was pleased that we managed to get some agreement from the Association of Chief Police Officers to accelerate things. It will be interesting if the Minister has any information about whether that genuinely accelerated things or whether the Minister was just told that it accelerated things.
Probably that is where my instincts lie. A better way of dealing with things is that the police should not feed information to the press and that they should get on with prosecution if that is what needs to be done. Then the blight that can affect professionals in schools as a result of false allegations can be lifted very quickly because there is no doubt of the seriousness of the problem for some individuals.
However, if we are going to have Clause 13, I support the amendments put by the noble Baroness, Lady Hughes. If you are going to give this protection to people who work in schools, you need to give this protection to all people who work in schools. These days, we see support staff, in particular, doing a range of work. In a lot of cases, it is support staff who are doing one-to-one work in schools, not the higher-qualified person, who is left to deal with the majority.
If there is a case to be made for teachers, there has to be a case made for support staff. The noble Baroness, Lady Jolly, made a very strong case in respect of FE colleges, which are starting to educate under-16s. I suppose I am trying to be slightly consensual in saying that I understand and, in the end, kind of agree that I am sceptical about Clause 13 but, if we are going to do it, let us do it properly.
I had hoped to support the noble Lord, Lord Phillips of Sudbury, but I am not sure whether he is going to speak now or later. I shall add to what the noble Lord, Lord Knight, said because I, too, believe that this is a question of process rather than of principle. I have talked to the Minister about this before. If we could get the issues dealt with quickly, then we would be able to avoid having to have this kind of clause. I speak as someone who has not only dealt with many victims of abuse—I want to come on to that issue in a moment—but has also supported members of the social work profession who have been faced by unproven, unsubstantiated and quite serious allegations. Having been a director in a child abuse case, I understand all the shock and pain that brings when it happens. It is the same sort of emotion that you feel about not being responsible for what you are being accused of. It is a terrible time for the individual and their family, but if we can get this process speeded up, that pain will be lessened, and we can get on with it.
I agree with the noble Lord who pointed out that we should not deal with the principle in a different way because we have a process problem. The principle must surely be that when an allegation has been made, it must be transparently investigated. I say this because not only have I dealt with people who have been falsely accused, but I have dealt with more young people than most people in this room who have been abused and who have had to face the process themselves. It is a terrible time for the young people when there are delays because they are faced with having to keep their evidence in their mind, they are going to be cross-examined in disciplinary proceedings and if it goes further than that, they are going to find themselves in court. That is another reason for the process to be speeded up.
However, I think the legislation as it stands at the moment is unworkable. I say this because, particularly if you have a situation where there is residential care alongside education—and I declare an interest as a patron of Livability which has a number of schools with both on the premises—what if you have two people accused at the same time? Will one of them find themselves free from publicity and the other one be thrown to the wolves and to the press? Unless the Government think that through, we will have a series of totally untenable situations. I think it is especially difficult in the present climate to talk about not having transparency in these situations when the Government are allowing the press into the family justice system. There are very strong feelings among families that find themselves and their situation in the press, albeit anonymously, when they find that the teacher who they think has harmed their child is protected. We have all sorts of muddled principles developing.
If this legislation is passed, it will weaken safeguarding. One of the things I know from many situations involving young people is that when one speaks out, it gives a voice to others. We know that an individual child’s voice in a court or in disciplinary proceedings is a very small voice. We know that when other young people come forward because one person has been brave enough to do so, you have much more hope of getting your case together. Even then, those of us who work with young people before the court as victims know that you are very unlikely to get a conviction without a great deal of effort and support. You have much more hope of doing so if you have a number of young people. To those people who say that groups of children come forward to make these allegations, research will tell you that there are very few situations where a group of children comes forward and they all tell exactly the same story that cannot be seen through. The lawyers among us will know that. If you talk to children and young people, as I have done, if they are making up a fairy story, you get it in one. If they tell you the story is the true story, then it follows through.
Like the noble Lord, Lord Knight, I am concerned because it is very difficult for people who are faced with these allegations, but the unforeseen consequences of not making them transparent are huge, and I think we should continue to make sure that our children’s needs are paramount, not the adult’s needs.
My Lords, I normally find myself 100 per cent in agreement with the noble Baroness, Lady Howarth of Breckland. However, picking up the last point that she made, I am comforted by the fact that the legislation makes it possible for the police to apply to a court for the restriction to be set aside if they feel that publicising the name of the accused person will enable them better to make their case by encouraging other abused children to come forward. I trust the wisdom of the court in that situation.
As regards school staff, my noble friend Lord Storey has just pointed out to me that certain highly-qualified teaching support staff are allowed to be fully in charge of a class without a teacher being present for up to two days, so they are in exactly the same position as teachers. All these issues make it all the more important that the Government consider our Amendment 75A, which asks them to have another look at this measure a couple of years after it has been introduced to ensure that it is not protecting abusers or allowing the names of innocent people who have had allegations made against them to be dragged through the dirt in the press. I am sure that that is sufficient time to enable the Government to make a sensible decision about whether the measure goes too far or does not go far enough.
The difficulty about the police applying to a court is that they will not know that there are other issues on which to move forward if other children do not come forward. That is the problem. Children come forward because they know that something is happening. The police consider that situation, and then they apply to the court. If they do not have that information, they will not apply.
My Lords, I wish to deal with an important point in this regard. My noble friend rightly says that the court has the power to lift a restriction on an application, but the legislation directs the court to have specific regard to the,
“welfare of the person who is the subject of the allegation”.
That is a very dangerous measure. My noble friend Lord Phillips will be moving amendments on this matter in the next group, but it is not as straightforward as just going to the court, as the court could already have a predetermined view.
My Lords, I was going to keep my powder dry until the next group of amendments. However, I have a problem with Amendment 75A in that it seems to me to involve a one-way inquiry. If it were a case of the Secretary of State having to report to the Houses of Parliament on reporting restrictions, whether they be good or bad, effective or ineffective, I would be wholly behind it. However, it is a one-way ratchet; the Secretary of State can report only on whether to extend the restrictions.
I would be only too happy if the Minister were to say exactly that.
My Lords, I shall try to pull together some of the strands from this extremely good and thought-provoking debate. I fully accept that these are not simple issues. I recognise that the noble Baroness, Lady Howarth, approaches this matter from a slightly different point of view from the generality of the Committee, with her concern for the children involved, whereas generally there was acceptance of the principle that one needs to protect teachers in schools. However, the debate concerns whether one should extend that further. I recognise noble Lords’ concerns, some of which were raised by my noble friend Lord Black, which we shall discuss in more detail when we consider amendments in the next group in the name of my noble friend Lord Phillips.
I accept that the reporting restrictions introduced by the clause interfere with rights to freedom of expression. I think that the noble Baroness, Lady Hughes, made this point. I think all noble Lords agree that any such interference would need to be carefully targeted, proportionate and justified. Teachers already have legal remedies if they are the victims of libel and defamation, as we all do, but those remedies are available only once the damage is done. My noble friend Lord Black raised that point.
It would be a very major step for a teacher, or for any of us, to go down the route of taking a libel action. That is an enormous step for a teacher to take, and I am not at all surprised that there appears to be little evidence of a teacher complaining to the PCC. If one were a teacher and suddenly found oneself the subject of these allegations, I do not think one’s natural first route of recourse would be to think, “Oh, I’d better ring the PCC”. I understand the points the noble Lord makes, but when one is looking at it from the point of view of what teachers might experience, it is proper for us to think whether, given the particular circumstances, it is right to try to provide extra protection for them and to do so before the damage is done.
We want to provide teachers, including, for example, peripatetic music teachers, sports teachers and supply staff engaged in the school—which is the point made by the noble Baroness, Lady Hughes—with more protection. That is what Clause 13 sets out to do. It makes it illegal for anyone to publish material that would identify a teacher as the subject of an allegation about a criminal offence made by or on behalf of a pupil at their school. It would remain illegal until an independent investigation showed that there was a case to answer, in that the police had pressed charges, or the Secretary of State, in his role as regulator, had published his decision to hold a hearing about the allegation.
The clause as drafted allows for applications to be made to the court for reporting restrictions to be lifted where a public interest case can be made. The clause does not affect in any way the seriousness with which allegations made by children must be considered and, if necessary, investigated by the appropriate authorities. Schools have statutory responsibilities to carry out their functions with a view to safeguarding and promoting the welfare of children. Government statutory guidance sets out that if an allegation suggests that a member of staff has behaved in a way that has harmed a child or may have harmed a child, has possibly committed a criminal offence against or related to a child, or has behaved towards a child or children in a way that indicates he or she may pose a risk of harm, the allegations must be referred to the local authority designated officer so that they can consult the police and local authority children’s social care services colleagues as appropriate. The police then have a responsibility to investigate allegations of criminal offences, and local authorities will consider what action may be required under their own statutory responsibilities to protect children from harm.
I agree with the points made by the noble Lord, Lord Knight, and the noble Baroness, Lady Howarth, about the importance of speed. I do not know the precise answer about whether these investigations have got any quicker. In my previous life before coming into this place, I was involved in a number of these cases, and it was an extremely protracted and grinding process that seemed to inch forward. For the child making the allegation and for the teacher who had allegations made against them, there was a sense of drift and of deadlines being set by the police or others which were not met. I think there is a real issue around the speed of the process and that one should try to think about how one should address it. There are also issues for the teacher because suspension is the default position. Once someone makes an allegation, it is currently a natural response, particularly given the legal advice one might receive, to say, “I find it inconceivable that this could be true, but I had better suspend them just in case”. There is an issue around that which might address some of these things.
We had a discussion about the evidence. We have had evidence from NASUWT which has given us records of allegations against teachers over the past 20 years where the union had been asked to provide a solicitor. We have a number of individual cases that provide evidence of press reporting of allegations against teachers in advance of charges being brought. The NASUWT evidence showed that 86 per cent of allegations between 1991 and 2009 that were considered serious enough to warrant NASUWT being requested to provide a solicitor resulted in no further action. Only 11 per cent went to court and, of those cases, 50 per cent resulted in the court taking no further action. Only 5 per cent of cases overall resulted in a caution or a conviction.
I have been asked a question which goes to this heart of this matter and which I accept is the proper question: why just teachers? Our argument would be that because of their lead role in relation to school discipline, teachers are particularly vulnerable to false and malicious allegations, but their role also makes it particularly important to protect them from the damage that such allegations, or the threat of them, can cause. Many of the amendments in this group seek to extend the clause to other groups. The Government are not, in principle, unsympathetic to requests to extend the provisions, but I would argue, for some of the reasons that we have already touched on and which have been raised by my noble friend Lord Black, that we should proceed cautiously. These new restrictions would be an interference with freedom of expression and, as such, we must ensure that they are a proportionate response to a clearly identified and pressing social need.
We do not yet have such comparable data for those who work in FE institutions or in relation to other groups of staff in schools. The noble Baroness, Lady Hughes of Stretford, pointed out that there are staff in FE institutions who have the same professional role in relation to the same kinds of pupils as teachers in schools. I accept that point, but there are differences between FE institutions and schools, in ethos, size and average age of the student population. The situation of support staff has been raised and our argument would be that, as a generality, they do not share the teachers’ lead role in relation to classroom discipline. To extend the provision, we would need clearer evidence than we currently have that these particular groups experience the same problems.
We are taking action to try to assess and develop the evidence base. The noble Baroness, Lady Hughes, mentioned a survey from UNISON. We have had and will continue to have discussions with representatives of the FE sector on this issue. We have commissioned a survey to look at the day-to-day experiences of how allegations are handled in schools, in FE colleges and by local authorities. This research began in March and we expect to have the results by the end of the year. I see merit in taking the opportunity to evaluate the effectiveness of the provisions contained in Clause 13 for teachers before we consider wider application.
That brings me to Amendment 75A, tabled by my noble friend Lady Jolly. It has been the subject of an exchange with my noble friends Lady Walmsley and Lord Phillips. As the noble Lord, Lord Phillips, pointed out, the request is for a report on how reporting restrictions will be extended rather than whether there is evidence that they should be extended. That is the nub of it. The amendment would also allow the Secretary of State to amend Clause 13 to include descriptions of other staff working with children and young people, should both Houses of Parliament approve the recommendations set out in the report. I see what my noble friends are trying to achieve, but extending the provisions to include other groups would necessarily entail a further interference with freedom of expression and should, in my view, be dealt with by primary legislation so that it is given the careful scrutiny that this House certainly provides.
The Government ought to review the impact of the provisions in the way that my noble friends have suggested and we should do that earlier than the customary period of three to five years. I think the timescale suggested by my noble friends sounds sensible and I believe that that review should include, as my noble friend Lord Black suggested, the views of the media as well. The debate that we have had clearly highlighted the difficult balance between the competing demands of protecting individual privacy and freedom of expression on the other. As the noble Lord, Lord Knight, pointed out from his own experience it is not straightforward. Should one hold back or go down the slippery slope, as he asked?
I understand the arguments for extending the protections provided by Clause 13 but I also accept the arguments that have been made that we should proceed with care and limit the circumstances in which these restrictions might apply. It seems to me that we should keep the effect under review and be prepared in due course to revisit it once we have further evidence. I hope that the noble Baroness, Lady Hughes of Stretford, will agree that we should proceed with this measure, although we should do so with caution. On the basis of that, I ask her to withdraw her amendment.
I am really sorry, but can I gently express my incredulity that we can say that teachers are in a different position from, say, care staff? Those care staff find themselves in a parental role with all the discipline and, often, the actual physical contact which that involves from all the aggro that you get when you are dealing with adolescents in the parental role—adolescents who have often failed to be contained in their own family. Are they in a less vulnerable position than teachers? I do not particularly want to extend this but I cannot see the logic at all of saying that this is a special position for teachers, because they are responsible for discipline in schools, when you have care staff in residential establishments— some of them very large residential schools—who in fact find themselves with even greater contact. I would like the Minister to look at that. I still do not understand how a teacher who may be in a residential institution and a care member of staff might both be accused of the same offence, yet one can be protected and the other cannot. I do not necessarily want the Minister to answer at this moment but I would really like him to take this away because it will make his legislation unworkable.
Without going into the broader field just raised, would my noble friend perhaps look within the school confines, which is what he is addressing here? It seems to me that classroom support staff, who may spend two days at a time in sole charge of a class, are in a position so analogous to that of teachers that they could perhaps be separated from the remainder of the staff for the purposes of this legislation. I realise that, as they more rarely have sole responsibility for the children, they are less at risk but it seems that the risk, although less, is just as real and the damage could be just as great.
My Lords, the more I listen, the more I am sad that we did not have the amendment from the noble Lord, Lord Phillips of Sudbury, because that would have put things into a much clearer perspective. I have the gravest doubt the more I listen, frankly, and I agree more and more with my noble friend Lady Howarth.
I always find it very hard to agree with the Telegraph, so I have been having a terribly tough time over the last 15 minutes or so. Although I would say to the Telegraph and others, as they said of us, that they have brought it on themselves and that I have every sympathy for wanting to look after teachers, we have to produce legislation that is practical and that works. I cannot see how what we have in front of us works with Twitter, Facebook and the inevitable communication that there will be between parents and, particularly, pupils. You really cannot have a teacher hoicked out of school with these sort of allegations and not have it flying around on the net. The wording in front of us seems to seek to tackle this by criminalising the children and the parents who will be doing this. That is most unwise. The damage really only occurs when some newspaper picks up a story and eviscerates a teacher to entertain its readers. That is the evil; I do not believe that we should be trying to curb more than that.
My Lords, I thank everybody who has contributed to the debate. The weightiness of the contributions, whatever conclusion each noble Lord has come to, has exposed the dilemmas posed by the Government’s proposal. It will be difficult for the Government to hold the line.
I say with great respect to the Minister that he did not say anything about why the reporting restrictions should not also apply to school support staff, teachers in sixth forms and further education colleges and, as we have discussed, to a whole range of other people, some of whom work much more closely and in much more intimate situations with some very challenging young people than do teachers. As far as I understood the Minister, he gave two reasons for restricting the provision initially to teachers and targeting the provision on them.
First, the Minister argued that teachers had a lead role in discipline and that that placed them in a special situation. However, noble Lords have exposed the weakness of that argument. If a member of the school support staff can be in sole charge of a class for two days, they are going to have to apply discipline. Similarly, people in other situations who often deal with challenging youngsters will have to apply discipline. School support staff in the playground have to apply discipline, so I am not at all sure that it is right to justify this targeting by drawing a distinction between teachers and members of other professional groups inside and outside schools.
Secondly, the Minister acknowledged the dilemmas posed by the provision but argued that it should be focused narrowly and evaluated for three or five years to see whether it needed to be applied to other groups. The previous Government provided guidance to the Association of Chief Police Officers on what information they should release to regional newspapers and on measures to speed up the investigation process, as I and my noble friend Lord Knight mentioned. We have heard no evidence from the Government on the effectiveness of those measures or how they could be strengthened as an alternative to this legislation with all its problems.
The impact on people caught up in these situations is the same irrespective of whether they are school support staff or work in sixth forms or in FE. That is why the Government are introducing this measure in relation to teachers. I perfectly understand that the noble Baronesses, Lady Walmsley and Lady Jolly, are trying to find a compromise but you can reasonably argue that school support staff are much more likely than many teachers to live very close to an education establishment and are much more likely to be known by a very large number of people beyond the parents whose children go to the school. Therefore, the reporting of allegations which are later proven to be unfounded is likely to have a much more serious impact on them because it will be picked up by the local free paper and everybody will know about that—friends, relations, everybody. That has to be considered.
The noble Baroness, Lady Howarth, argued compellingly that the legislation will be unworkable as restrictions on the reporting of a case will apply to some members of staff but not to others even though the allegations may concern a similar incident. That could also apply to a school nurse running a clinic with a teacher present.
I argued before that when we pass legislation we ought to consider the evidence of the need for it, how it should apply and the principle. The principle that I referred to was that there should be parity before the law, which ought to apply equally to people faced with different situations. Clearly that will not be the case here. In so far as the Government have given us evidence, as far as I can see it is the same quality of evidence that we have in relation to teachers from the teaching unions as we have in relation to support staff and FE lecturers. We do not have a different quality or quantity of evidence supporting the case for targeting teachers.
I hesitate to say this because I do not want to appear divisive, but it is hard to avoid the conclusion that this is another populist proposal from the Secretary of State that is ill considered, unfair and will have serious implications for many individuals. The excellent debate today has exposed that. I concur with my noble friend Lord Knight and others; if we are to legislate to protect people in schools, we ought to do it properly. We have had an excellent debate. I have no doubt that we will return to this matter and beg leave to withdraw the amendment.
Amendment 73E withdrawn.
Amendments 73F to 73H not moved.
It has been suggested to me—if noble Lords will excuse the possible pun—that, as a matter of convenience, this might be an appropriate moment to take a short break. The Grand Committee stands adjourned until 6.20 pm.
My Lords, the Grand Committee will recommence. Before calling Amendment 73HA, I should advise that, following a request from the noble Lord, Lord Phillips of Sudbury, the question that Clause 13 should stand part of the Bill has been degrouped and, therefore, will be put separately after Amendment 73M.
73HA: Clause 13, page 20, line 14, at end insert “unless that person has put the allegation directly or indirectly into the public domain”
My Lords, I asked for the degrouping because this is already a long group of amendments, which is the nitty-gritty and I hope to cover them. That the clause should stand part is a separate debate, which touches on many of the things that noble Lords have said with regard to previous groups and I shall make no further reference to that now.
I put forward this group of amendments very much in a probing spirit. They are not perfect. This is a highly complex clause and I shall seek to explain the point of the amendments in turn. But I am mindful of the fact that, if Clause 13 goes through unamended, it will repose in the teaching profession a privilege unique in English law. As others have said, if this should apply to teachers, why not to many other groups? It is an argument which seems to me to be quite unanswerable. With great respect, I do not think that my noble friend Lord Hill answered it.
We have this debate on a very pregnant day. The other place has debated the latest extraordinary events in relation to phone tapping. Partly because of that, and because the public are so agitated about the conduct of certain sections of the press, it becomes doubly incumbent on us to keep a cool head. I suspect that we, more than any other group in the land, understand the absolute indispensability of a free and fearless press to the preservation of democracy, the rule of law and open justice. Furthermore, if we are frank, we will acknowledge that it was just such reporting, particularly, I have to say, on the part of the Telegraph, which exposed the expenses scandal in both Houses of Parliament. For that, we need to be a little humble.
I should declare my interests. For a decade, I was a proprietor of a newspaper and a trustee of the Scott Trust, which owns the Guardian, the Observer and a fleet of local papers. For 20 years, I was a governor of state comprehensive schools, one of them as a parent governor. My wife is a former teacher and is presently a governor of a state comprehensive school. I come to this subject with huge respect and sympathy for the teaching profession. I understand exactly what it is on about. I also understand a little about the difficulties of dealing with situations where juveniles are witnesses and complainants. Especially in the early part of my long legal career, I dealt with some of those cases and I understand the quite peculiar difficulties of them.
Diving straight into my amendments, many noble Lords will not understand that truth will be no defence against the criminal charge of identifying a teacher, even if he had in fact committed serious criminal offences against one or many pupils. The clause is clear that until and unless a teacher has been charged, which will often follow a long time after an arrest, no individual and no media outlet can say or do anything which would identify that teacher unless the parent, pupil or media have been to court and obtained consent to lift the restrictions. I am bound to say that in my experience the hurdles of going to court and making an application to lift restrictions are simply beyond the scope of a normal pupil or parent, quite apart from the expense of employing a lawyer to undertake that task.
The first amendment in this group to which I shall draw attention relates to new Section 141F(12). It defines what a publication is in respect of which a criminal charge can be brought against anyone identifying a teacher. It gives exceptions to publication, saying that an indictment shall not be a publication so as to bring on the prosecution for identification and so on. I have added, in Amendment 73HJ,
“a publication by or on behalf of a registered pupil at a relevant school made to a person or persons affected by the allegation or who otherwise has or have a bona fide interest in receiving the same”.
If I am the parent of little Johnny who comes back and says that Mr Smith has been doing this or that and I go to the headmaster and say that this is what little Johnny said, and then nothing happens—let us not kid ourselves, often nothing will happen—surely I must be free to go to other parents in little Johnny’s class and possibly to a wider group than that. If I were to do so, I would then be liable to criminal prosecution under the provisions of this section and that must be utterly daft because it would then be a publication to a section of the public. That phrase “a section of the public” has a rather legal meaning and I think I am right in saying that my writing round to, say, 50 other parents in the school would fall foul of that. So that is the first amendment I draw attention to.
What needs to be understood is that in some cases no charge will ever be brought, even though there has been a blatant case of assault or sexual interference. The most common reason for that is likely to be lack of sufficient evidence to satisfy the criminal test of beyond reasonable doubt. The younger the pupil, the more vulnerable they are, and the less confident, composed and convincing witnesses they tend to make. The CPS, in deciding whether or not to bring a prosecution, with all the substantial distress that that can bring to the child or young person, or to the witness and their family, will consider that a major factor and, as it thinks that the witness will not stand up, it may simply not prosecute. No charge may ever be brought. There can also be the problem that the evidence is not corroborated.
There is also a complication, which I need to spell out. If a charge is never laid, no publicity can ever be made, even if the case is a bad one, unless someone goes to court and gets the restrictions lifted. Another complication is that although allegations are supposed to be recorded, then reported and acted upon—your Lordships have heard about that several times—the temptation on the part of a head to deal with matters informally and quietly can be very strong, especially where the school is going through a rough patch and where further publicity could be devastating for it. In any event, teachers are human and, knowing the consequences to a valued colleague when certain, perhaps lower level, allegations are proceeded with, and if there is a bond between the teacher and the head, the rules are not always strictly followed. Does anyone think that they were in the Catholic schools, where, a few years ago, revelations came far too late to help the many boys who had been abused? The prep school that I had the misfortune to attend was presided over by a predatory, aggressive homosexual who abused boys on a daily and nightly basis for 12 years. Nothing ever came to light, nothing was published and no charge was brought.
I will flag up another inadequacy of Clause 13, to which Amendment 73HA refers. Proposed new Section 141F(10) is very important because it gives the circumstances in which the reporting restrictions will be lifted. It states that the restrictions will cease to apply,
“once there are proceedings in a court in respect of the offence”.
My amendments will make it clear that proceedings can be in a civil or criminal court, or in a tribunal. Amendment 73HH states that restrictions will be lifted,
“once the person who is the subject of the allegation under subsection (1)”—
“resigns or is dismissed from the employment or engagement”.
The point here is that often, at the first sign of exposure, teachers will resign and get the hell out of it. Although of course schools have a duty to take steps in that circumstance, they do not always do so. We should never underestimate the huge pressure on head teachers, the mass of paperwork that will follow in respect of such a case, and so on. That is a very important change to the clause. It will mean that, as soon as a teacher is dismissed or resigns in the face of an allegation, there will no longer be any reporting restriction.
I now draw the attention of the Committee, as others have done, to the vital importance of publicity, particularly in local newspapers. I do not refer to gaudy, sensational reports, but simply to reporting of the fact that, for example, Mr Brown has been suspended from X high school in respect of certain allegations—no more than that. That is not allowed under this clause, but not to allow it in the circumstances that I prescribed in Amendment 73HH prevents the very thing that we want; namely that other boys should come forward. Others have made this point, but it needs hammering. You do not get the witnesses that you need in order to bring a charge unless there is publicity. We are in a Catch-22 position. We cannot have publicity until there is a charge, but we will not get a charge until there is publicity.
Noble Lords will be glad to know that I am coming to the end. I turn to Amendment 73HB, which refers to new Section 141F(5). This covers people going to the magistrates’ court and saying, “Look, for these reasons you should lift the reporting restrictions, which are not in the public interest or in the interests of justice”. As my noble friend Lord Black said, the fatal words of the proposed new subsection state that the court will come to its decision in the interests of justice,
“having regard to the welfare of the person who is the subject of the allegation”—
namely the teacher. Why on earth not the pupil? How can it conceivably be right to load the dice in favour of the adult against the young person? It is easy to answer, “If he is falsely and maliciously accused, that is justice”, but you do not know whether he is falsely and maliciously accused, and you do need to know whether there are others in the town or wherever who have been subject to the same treatment. That is why I tabled the amendment, and I hope that it appeals to the Committee.
Finally, I will deal with some small amendments. I referred earlier to new Section 141F(10) that covers the lifting of restrictions. I have added civil and criminal courts and tribunals. I have also done something for the benefit of the teachers, namely replace the word “offence” with “allegation”. It is not an offence until it is proven in a court of law. Until that time, it is an allegation. I think that must be a drafting mistake. I have also put in Amendment 73L to the same effect.
There is one more amendment I should refer to: Amendment 73HA which adds to subsection (3) the words,
“unless that person”—
“has put the allegation directly or indirectly into the public domain”,
You may ask what mad teacher is going to put into the public domain an allegation against himself. It will not happen often, but it could happen. I am going back to my own experience. The teacher concerned was an extremely competent, aggressive, up-front person, and you will get the odd, strange person who will think that attack is the best means of defence and will get his or her blow in first, so to speak. Unless we have this amendment, it allows such a person to have their cake and eat it and to take advantage of publicity that is not allowed to anyone else. It is for those reasons that I commend the amendments in this group to the Committee.
My Lords, I can remember an occasion that illustrates my noble friend’s last amendment. Some boys went to a headmaster and asked if they could have a videotape to use for a project they were doing. He picked one off a shelf and gave it to them, and it was the evidence. People do put these things in the public domain by mistake. I particularly welcome my noble friend’s Amendment 73HJ. There has to be the right for pupils and parents directly affected by this to discuss things. It is the obvious way in which things will come forward. Anyway, it is going to happen. You cannot criminalise that sort of conversation within a school community about something that is happening within the school, so it has to be possible. It will be done on Twitter and on Facebook. These things will not spread. No teacher is Ryan Giggs. There is no national interest in the person’s name. They will remain in a little corner of the social media, of interest to pupils in the school and to the parents of the children, and that is where it will remain. No great harm will be done because, frankly, the school community knows already. I do not see any objection in the wider media carrying just a basic statement that so-and-so has been accused and has taken leave of absence from the school as a result. That is scarcely something that in that form is going to hit the national media, but it at least means that the basic facts that that has happened are, as they should be, a matter of public property.
Surely the evil we are trying to prevent is a newspaper aggressively trying to dig up information about a particular individual in order to make a story, which you might call a human interest story, for people who have never heard of this person and have no interest in him otherwise. It is just a composed story that might be about anybody, but it is immensely harmful to the teacher concerned. That is the sort of thing that we are trying to prevent. The fact that an allegation is made is there and is fact. It should surely not be hidden. We are not in super-injunction territory. I find my noble friend’s amendments very persuasive.
My Lords, I support the amendments tabled by my noble friend Lord Phillips and will speak also to Amendment 73M. Just for the sake of the record, I draw attention to the interests I declared earlier. I was very struck by what the noble Baroness, Lady Howarth, said earlier. She said that this clause as currently drafted is unworkable and that unworkable legislation simply brings the law into disrepute. My noble friend has just said that we are not in super-injunction territory, but I fear that, because of the impact of digital media, which I shall talk about in a moment or two, we will be in super-injunction territory at a sort of local level that will cast this legislation into that disrepute.
If we are to have legislation, at least let it be workable. I believe that the amendments tabled by the noble Lord, Lord Phillips, try to do that by importing into new Sections 141F and 141G the concept of the public domain and the public interest. The exclusion of any mention of the public interest in Clause 13, as it stands, is quite remarkable. I cannot think of any other legislation dealing with incursions into the freedom of the press and freedom of expression which do not have a public interest defence. That must be put right.
In my view, these amendments are crucial because the real problem with this clause—the unworkability factor—is that it takes no account of how allegations are spread and the damage that they can do to schools and to innocent teachers in the absence of responsible press reporting. As I said at Second Reading, my concern is that this legislation will simply drive innuendo and rumour underground and new Section 141F(12) will encourage that. Its definition of “publication” is designed to catch the media, which is not at the root of any mischief here, by tying it to material addressed to the public at large. That is the wrong target. The Minister in another place, Nick Gibb, made it clear that this legislation is not intended to capture private conversations, which include e-mail exchanges, texts, Facebook postings, Twitter and all sorts of other mechanisms. That is precisely where allegations and innuendo, which it seems to me that the Government want to be at the root of this legislation, will build up, now that Clause 13 makes it impossible for them to be dealt with in a responsible way in the press, which is constrained by the laws of libel and contempt. In a short space of time, the weight of individual private exchanges may mean that in a small school everyone knows when a teacher has been accused of something, but only the local newspaper will be unable to report it.
The noble Lord makes a really powerful point. I am sure that this legislation was drafted before super-injunctions and before the Twitter activity around certain footballers whose names were disclosed and the mischievous and false rumours spread on Twitter about other celebrities and what they may or may not have been doing. Is that not all the more reason for the Government to look at this again?
I could not agree more with the noble Lord. It is a point that I would like to address. Who could imagine what would happen if rumour or innuendo, which turns out to be false, circulates at the school gate about a teacher. There may indeed have been an assault, but perhaps the wrong teacher has been accused in the diaspora of cyberspace, or perhaps, as the noble Baroness said earlier, two teachers have been named in allegations that have been pumping around parents. The only way for teachers to clear their names would be through responsible publication in a local newspaper. That would be in the public interest, and it would reflect the fact that the material is already, in effect, in the public domain because of digital media.
If this law is not to become the same sort of fiasco as the super-injunctions, those defences need to be put in here. I believe that the proposed amendments to this clause will act as a vital pressure gauge and allow accurate and fair reporting where the public interest demands. They will also help some of the massive legal uncertainty that flows from the definition of publication which, by experience, the courts, particularly the magistrates' courts, are not good at dealing with. Often these issues are beyond their competence.
These amendments also mirror exactly the terms of Section 12 of the Human Rights Act, which deals with interference in the European convention right to freedom of expression. That legislation directs a court to have particular regard to the extent to which,
“(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published”.
This legislation, which is a substantial incursion into the convention right, should have exactly the same defences as the Human Rights Act, especially as it is certified to be in accordance with the terms of the Act, and these amendments seek to secure that.
Finally, one of the most critical of my noble friend’s amendments seeks to include civil courts and tribunals in the exemption in new Section 141F(10). I ask the Committee to imagine the following scenarios, if this legislation goes through. I know that my noble friend Lord Hill mentioned earlier that it was unlikely that teachers would ever sue for libel, but it might happen. A teacher might sue someone for libel in respect of an allegation relating to him or her that might have been uttered not by the local paper, because it cannot do that, but by somebody else at the school. Evidence in defence given by a pupil could not be published because it would identify the teacher. Indeed, it is impossible to see how the libel action could be reported anywhere because that would identify the teacher.
An inquest where evidence of allegations identifying a teacher is given because it is relevant to the circumstances of the death of a pupil could not be reported. The inquest, or at least sections of it, could not be reported because it would identify the teacher. Employment tribunal proceedings involving allegations against a teacher, whether as a party or as a witness, could not be reported unless the amendment in the name of my noble friend Lord Phillips, which seeks to deal with that point, is accepted.
Therefore, all those cases would be caught, and evidence suppressed, because a teacher might be identified. That would make a mockery of open justice and invite charges of cover-ups. I do not believe that is what the Government intend. These amendments are vital if we are not to usher in an age of secrecy where the cards are stacked heavily in favour of the teacher and against the child. I urge the Minister to take these amendments away and consider whether they can be incorporated in the legislation.
My Lords, I shall speak extremely briefly as the noble Lord, Lord Black, has made a number of the points that I was going to make. I wish to make three points. First, given the debate that took place in the Commons, I seek reassurance that parents and children who share information between themselves will not fall foul of the provision regarding publication. That provision has dangers attached to it but also strengths because, if this legislation is passed, they will be able to share information and ascertain whether other children have been involved. That is crucial.
Secondly, I suspect that the Minister may say that as regards new Section 141F(5) and the protection of the person who is the subject of the allegation, the children concerned may be covered by the “interests of justice” provision. However, that needs to be made explicit because it will not be understood that the children are protected in the interests of justice when the Bill makes special mention of,
“the person who is the subject of the allegation”.
That is a serious flaw and goes against all the legislation put on the statute book from the Children Act 1989, which was introduced by the Conservatives and made children’s rights paramount, right through to the subsequent legislation introduced by the previous Government.
Thirdly, even if parents wanted to go to court, the present state of legal aid means that they would have no support through the legal aid system to enable them to put their case. Therefore, they are even less likely to do so than might have been the case previously, difficult as such a process is. I support the sensible amendments in the name of the noble Lord, Lord Phillips of Sudbury, and the arguments put forward by the noble Lord, Lord Black.
My Lords, I hope that my noble friend the Minister accepts that my noble friends are trying to help the Government produce a good piece of legislation and that he will consider the very thoughtful case made by my noble friend Lord Phillips. In an earlier debate, I said that I was somewhat comforted by the possibility that the police would be able to apply to the court for the restriction to be lifted. However, I take the point that my noble friend Lord Phillips and the noble Baroness, Lady Howarth, have made that the last few words of new Section 141F(5) skew the position of the court in the direction of the alleged perpetrator and not of the child. Personally, I think it would be a very good idea to take that out.
I am also very convinced by my noble friend's argument about inserting his proposed new paragraph (b)—in Amendment 73HH—into subsection (10) of proposed new Section 141F, so that the restriction could be lifted once the person has resigned or been sacked. I have had a great deal of evidence sent to me by campaigners against child abuse particularly, it has to be said, in relation to independent boarding schools, where of course the opportunities are greater. Very often, however, what my noble friend said is absolutely right: it does happen that it is in the school’s interest to sweep it under the carpet and quietly say, “You go away and resign and we will say no more about it”, because these schools are financial organisations and they will lose money if things get about that dreadful things have happened there.
We really have to be very careful if we are to pass legislation that might encourage that situation or protect those people because I am told that what happens is, yes, they go away from that school but they pop up somewhere else and carry on. I am sure that my noble friend the Minister is most concerned about safeguarding children and, secondly, concerned about innocent teachers who might have allegations maliciously made against them. We somehow have to find the right balance between those two things.
I would say one more thing about what the noble Lord, Lord Black, said. The Human Rights Act asks us to draw a balance between the rights of free speech and the right to privacy of the individual. We have to bear in mind that it is not all in the direction of free speech. The Act talks about the rights to privacy for the individual as well and there, again, we have to create the correct balance.
My Lords, when I spoke a little earlier, I was trying to say that I was sad that the two groupings had not been moulded together because it was very important to hear what the noble Lord, Lord Phillips, had to say before the Minister has the duty to reply. He now has that advantage but I was also impressed by what the noble Lord, Lord Knight, said previously about his own experience of looking at a similar approach to that which the Government are thinking about. In the end, for a number of reasons, they did not go down that path.
We have heard today of the disadvantage that it would be to some groups, if not to others, to say nothing of this sort of behaviour spreading around the country without anyone knowing what would happen if allegations are true and proved. I am afraid that we have had too many instances in the past of things coming to light much later on. We also know the damage that has been done to so many young people as they grow up. I very much look forward to what the Minister has to say because I hope that Members, obviously not just in this House but in the other House, will read carefully what has been said during this debate because it should have considerable influence, along with what the Minister will say to his colleagues in the other place.
First, my Lords, I thank the noble Lord, Lord Phillips, for giving me an annotated photocopy last week of his proposals because it enabled me to work my way through them and really think about them. Having done so, if we are to have legislation of this form then the amendments that he has put forward and the powerful arguments he has made from his own experience are compelling. However, I want to draw the Minister's attention to Amendment 73HB, which would delete that phrase in subsection (5) where the court, in thinking about “dispensing with the restrictions”, can have,
“regard to the welfare of the person who is the subject of the allegation”.
That was picked up by a number of Members here. In our debate on the previous group, we were concerned that the Government were considering teachers, and only teachers, and not other professional groups. For this phrase to be included in the legislation is so illuminating. It speaks volumes to me of the mindset with which the Government have approached this issue. Again, we see the Government thinking of only the teacher vis-à-vis, in this situation, the child. That is so disturbing and demonstrates their tunnel vision approach to this whole issue. I hope that they will take this whole matter away and think again.
My Lords, I know that my noble friend Lord Phillips is always helpful, as the noble Baroness, Lady Walmsley, said, because I benefited from his advice when I stumbled into this House last year on the Academies Bill. I was grateful for his help and advice on that, as I am sure I will be on this Bill. I know that my noble friend is always helpful.
The final point made by the noble Baroness, Lady Hughes of Stretford, implied that the Government care less about children than they do about teachers. She did not put it in those words but there was that sense in the way in which she described the mindset of wanting to think about teachers before thinking about children. I am sure that the noble Baroness accepts that in a whole range of other ways the Government are demonstrating their commitment to thinking about children. But we certainly want to make sure that the interests of teachers are taken fully into account and that, in making sure that absolutely the right balance is struck between the interests of the children and the interests of the teachers, the interests of the teachers weigh properly in the balance. That lies behind a whole range of measures we are taking where the Government feel that there are ways that one can demonstrate that support to teachers.
This group of amendments and our very good debate have echoes of the previous debate. My noble friend Lady Walmsley rightly makes the point about trying to strike a balance. We have tried to draft Clause 13 so that there is clarity about when reporting restrictions commence and when they are lifted. We are keen to try to keep that. The provisions are about protecting teachers, but I understand that there may be cases where there should be balance with other matters in the public interest and the courts will be required to strike that balance when considering dispensing with these restrictions.
We have had a fair discussion about Amendment 73HB and the suggestion that under the clause as drafted it looks as though the teacher’s welfare is represented as the overriding consideration. It is true that the provision requires the court explicitly to have regard to the likely effect of publication on the teacher. The interests of other parties will also be taken into consideration by the court when considering what is in the interests of justice. But I take the point made by the noble Baronesses, Lady Howarth and Lady Hughes, my noble friend Lord Phillips and others. I will try to rattle through some responses to some of his amendments because I hope that we can allay some of his concerns. But, clearly, with a couple of them, I should like to sit down with him and make sure that we have got the balance right in the drafting to make sure that we do not inadvertently open up some of the concerns that he raises.
My noble friend Lord Black raised the question of a public interest defence being added to the provisions. We think that that point is protected by the provision allowing the reporting restrictions to be lifted by the court in appropriate circumstances. They could include circumstances in which the information was to be published by others. We think that the process of applying to the court for reporting restrictions to be lifted provides a proportionate mechanism for taking into account the interests of the individual, maintaining their privacy in the face of what may be false or malicious allegations.
My noble friend Lord Lucas suggested that he could not envisage many situations in which a teacher would suffer loss through having been written about in the newspapers. Indeed, he did not think that there would be much interest in the newspapers writing about some unknown teacher. I can think of some four-lettered public schools for which I have worked in the past where anything to do with those schools, including the teachers, is of great interest to the more sensationalist end of the press, although obviously not that represented by my noble friend Lord Black. There have been many repeated stories about teachers in a number of those institutions. We believe that allowing a public interest defence would mean that potential recourse for those teachers would be left too late.
My noble friend Lord Phillips suggested that we should add to the circumstances that would trigger the lifting of reporting restrictions. He particularly suggested that the resignation or dismissal of a teacher, the initiation of libel proceedings or an employment tribunal relating to the allegation should cause the reporting restrictions to lift automatically. I understand his point following our debate about resignation being used as a way of not dealing with the issue—in effect, an admission of guilt without the admission of guilt being given. I shall reflect on those points, but the Government’s position is that the restriction should lift automatically only if it has been independently decided by the police or the regulator that there is a case to answer. If the police decide not to press charges, and the Secretary of State, as the regulator, decides that there is no case to answer, we think it is right that reporting restrictions should continue to be in place.
One of the amendments spoken to by my noble friend, concerning a point also raised by my noble friend Lord Black, relates to an individual effectively deciding to waive their right to anonymity and publicly defend themselves. I am sympathetic to the view of my noble friend Lord Phillips that restrictions should lift to enable others to enter the public debate. We have made provision for the written consent of the individual to publication to be a defence against breach of the restrictions, and that may also deal with some of the concerns raised by my noble friend Lord Black. As part of the conversation that I shall have with my noble friend, that is one of the issues that I should like to explore with him.
In Amendment 73HJ, my noble friend seeks to make sure that provisions do not deter victims of criminal offences from complaining about a teacher’s conduct to the proper authorities, such as the school, local authority or police, or to alert others who may be affected. That point was also raised by the noble Baroness, Lady Howarth. I hope that I can provide some reassurance. The provisions will not criminalise private conversations of that sort; nor will they prevent the police and others carrying out their investigations. Part of the thinking to which my noble friend referred concerned ensuring that parents or others are able to inform the school community of allegations and warn others if they feel that a teacher presents a risk to children. I understand that but, again, I can think of instances in which a well meaning individual has acted inappropriately on what they believe to be real concerns, which later prove to be unfounded. Another example is that sometimes people within a school—either parents or other members of staff—get excited about an issue and launch a campaign. It is our view that once allegations have been reported through the proper channels to the police, the local authority and the school, it is for those authorities to investigate and establish if the allegations can be substantiated, and in the mean time to take proper precautions to safeguard the interests of the children.
My noble friend tabled a couple of more technical amendments. Amendment 73L relates to an allegation of a relevant criminal offence. That is made clear earlier in the clause, so I am not sure that the change is necessary—again, we can discuss that. Amendment 73HC concerns the provision in the clause for appeal against a decision made by a magistrate in relation to an application for reporting restrictions to be lifted in the interests of justice. The amendment relates to someone who was not a party to the original proceedings and wishes to appeal. We think that their application for leave to appeal should be decided by the Crown Court.
Those are my responses. I understand half of the spirit in which my noble friend tabled his amendments; I know that he is about to introduce a clause stand part debate, which suggests that there is another half of the spirit in which the amendments were tabled. I am grateful to him and would be glad to explore these matters further with him. In the mean time, I ask him to withdraw the amendment.
My Lords, perhaps I may pick up on what my noble friend said about private conversations not being included. I entirely understand that, but I do not understand where the Government think the border is in modern social media between private and public. Does he agree that Twitter is at all times public but that Facebook is a pretty difficult area? Kids these days communicate over Facebook in the way that we use e-mail. Communication between children talking about a particular allegation and saying, “Has this happened to you?” or “Have you seen anything like that?” will take place in an environment that might be considered public even though the kids will see it in the same way that we see e-mail. Will the noble Lord say which bits of the social media are public and which are private for the purposes of the Bill?
I will have a go, and if I need to follow up subsequently, I will. We have made it clear that an offence is committed not only when somebody publishes an article or broadcasts a programme in the traditional media, but when somebody posts an allegation on the internet, even anonymously. I recognise, as the noble Lord pointed out, some of the practical challenges posed by investigating the source of allegations on the internet, with which we are all familiar: but that is the intent. It will not affect private conversations, including via e-mail or text. However, where such communications constitute a publication—this is the definition in the clause, which I am sure we can have some fun with—by being addressed to the public at large, or to any section of the public, we propose that reporting restrictions will apply.
Will a private letter from the parent of one child to the parent of another child in the class be regarded as a publication, or will that be private?
That would be private.
The issue of Facebook is challenging, because it is possible to establish closed groups within Facebook, which people can join only if they are invited. You would not regard those as public because you are there only by invitation. However, once you are in the group, things can be said. Where would that sit?
I am not answering. I cannot respond to the speaker. We want to hear from the noble Lord, Lord Phillips.
My Lords, I am grateful to the Minister for his, as usual, careful and considerate reply. There are a lot of very difficult technical issues involved in that group of amendments. I welcome his invitation to talk about them outside this Committee Room, and I will certainly do that.
I want to refer to only one of his answers particularly, because I am wholly, as opposed to partly, unsatisfied by what he said as regards Amendment 73HJ. The Minister’s claim was that one could get a parent who wanted to start a vindictive campaign against a teacher. I think that is at the far end of speculative possibility, not least because a parent who did that would be in direct danger of libel proceedings by the teacher concerned. One might argue that teachers do not do that, but I have acted for a few people who have done that and have prospered from doing something to recover their reputations. Anyway, we shall talk about that when the time comes.
The only other thing I would say is that I am most grateful to the other Members of the Committee for their extremely wise and informative contributions to this mini debate and I note that not a single person opposed the amendments. No doubt the noble Lord, Lord Hill of Oareford, will sleep on that. I beg leave to withdraw the amendment.
Amendment 73HA withdrawn.
Amendments 73HB to 73M not moved.
Debate on whether Clause 13 should stand part of the Bill.
My Lords, when I tabled the amendments to Clause 13, I thought that I would leave it at that. However, as I delved more deeply into the background to the clause, had conversations particularly with the National Association of Schoolmasters and Union of Women Teachers, and read carefully the 13th report of the Joint Committee on Human Rights, which was published on the 13 June, I became more and more concerned about the blatant lack of any satisfactory evidential base to support what is, on any reckoning, a very major change in the law of this land. It is the first time in our history that such privilege has been given to a protected group. I want, therefore, to test with the House a little further the whole notion of Clause 13 being removed from the Bill.
Many noble Lords have already said that it poses all sorts of technical and other problems. I noted that, in her opening on the previous group of amendments, the noble Baroness, Lady Hughes, expressed some concern about the whole position and about the whole of Clause 13. The noble Lord, Lord Knight of Weymouth, was clearly concerned. My noble friend Lord Black and the noble Baroness, Lady Howarth, were among a number of noble Lords who directly challenged the need for Clause 13 and several others who have hinted at it. So I hope that noble Lords will bear with me if I plod, as I have to, through the specifics of the factual base which the Government say justifies this novel provision, which, let us not forget, strikes at the heart of freedom of the press, law and order, and open justice.
My first point is that the JCHR report to which I have just referred put questions to the Secretary of State for Education. The 13th question was:
“In each of the last three years, how many examples is the Government aware of in which allegations against teachers have been made public before charge?”.
The Committee will appreciate that that is the very heart of Clause 13. Publicity after charge is unaffected by the Bill. It is still a highly complex subject, even after charge, but unless there is clear and voluminous evidence that criminal allegations against teachers have been made public before charge, I submit that there is no ground for Clause 13. What was the reply of the Secretary of State to this pregnant question? It was:
“The Department does not routinely collect this data”.
The next question from the Joint Committee—question 14—asked the Government for,
“specific examples … of allegations against teachers”—
again, before charge. They came up with just six cases, referred to in their human rights memorandum. I urge Members, if they are interested, to read the reports of those six cases on page 63 of the June report. Each is a verbatim transcription of the pre-charge press report in each of the six cases. There is nothing but what was actually published on those six occasions: no spin, no colour, nothing. Four of the excerpts from pre-charge publication detailed the suspension of the teachers concerned and two of them detailed their arrests. I emphasise that they were dry and factual; there was no colour and no tendentiousness. None of the reports took more than four lines.
That did not stop the Government from asserting, in paragraph 114 of their extremely long and careful response to the Joint Committee on Human Rights:
“In the examples that the Government has of allegations against teachers being published before charge, the Government is satisfied that in the majority of cases there was no overriding public interest in”,
publishing allegations at an early stage. But how many cases were there? Six—and, as I said, in four of those cases there had already been a suspension, in two there had been an arrest and in none of them was there any additional comment. In advancing the case for the need for Clause 13, the Government relied principally on what they were told by NASUWT, because these six other cases came by another route. The union was extremely professional and open in providing me with further information in addition to that which it gave to the Government and the JCHR, and which appears in tabulated form on pages 62 and 63 of the JCHR’s 13th report. NASUWT gave me brief details of five further cases of the publicising of allegations against teachers which it obtained from its solicitors, yet the majority of those five cases do not involve any pre-charge publicity at all. They were all newspaper reports of trials—mainly acquittals.
Even on the issue of the number of allegations made against teachers, which my noble friend Lord Hill of Oareford made quite a bit of in responding to the set of amendments before the ones that I advance now, the Government appear to have misinformed themselves. The Minister, Nick Gibbs, said in the other place on 22 March that,
“since 1991 the number of allegations”—
“had increased, and … the majority of allegations made against teachers were false or malicious”.—[Official Report, Commons, Education Bill Committee, 22/3/11; col. 553.]
Both those points were reiterated by the JCHR in its June report, but the statistics show otherwise. Over the past 10 years, in the statistics for 2000 to 2010 from NASUWT on cases brought to it of teacher involvement with criminal allegations, the average number of reported allegations per year is 181. However, for the past three years there has been a decline: in 2008, not 181 but 148; in 2009, 115; and, last year, 107. Yet the Minister in the other place said that the number of allegations had increased, which is simply wrong.
Further, the NASUWT figures do not state how many allegations were false, let alone malicious. Many allegations fizzle out because of insufficient evidence or corroboration, or because other aspects of the case cause difficulty. I have mentioned the age of witnesses, for example. Your Lordships should also not forget that the authorities involved in schools and in prosecutions, with the police and the courts, are all incredibly overstretched and are usually making choices between a superfluity of cases which they could prosecute. Again, it seems that the Government are working blind on this.
Incidentally, the ATL provided the Government with some rather bald statistics from a survey that it did in 2009—no details of which are given in any of the documentation. It stated that 50 per cent of teachers said that they or a colleague had had false allegations made against them. The fact that some of these allegations were second or third hand, with no indication of whether they were in respect of criminal behaviour by a teacher, and most of all, of whether there was any pre-charge publicity, makes those statistics wholly unreliable as a basis for supporting a change in the law of this importance.
In case any Member of the Committee thinks that the number of convictions, including cautions, is insignificant in relation to the number of allegations, the NASUWT figures show that in 2009, 15 per cent of all allegations resulted in cautions or convictions. That is not an insignificant number.
At Second Reading, I quoted figures for the past 10 years from the department which showed that more than 1,700 allegations against teachers were made. If 85 per cent of them were not upheld, the figures do not support the argument that the noble Lord is making.
With great respect to the noble Baroness, I cannot agree. Perhaps that is because I am a hoary old lawyer and she, happily, is not. A 15 per cent conviction rate in respect of all the allegations made is a very high outcome. I will happily discuss this with the noble Baroness outside the Room. The ATL figures seem to me to be hopeless as a basis for bringing in this important reform.
The JCHR seems to be lacking in awareness of the balance of injustice and harm between pupils, particularly young ones, and their teachers when it comes to criminal allegations. We are in danger—and in the other place they are even more in danger—of expecting too much of the law. It is not the finely tuned truth machine that ideally we would like it to be. It never can be, given the machinations of mankind, despite the best efforts of our excellent judiciary. We do not talk about rough justice for nothing. That is why in criminal law we have a test of proof beyond reasonable doubt, rather than the lesser, civil test which is based on a balance of probabilities. The bias towards the accused is necessary to protect the innocent from conviction, which we as a society believe is much more important than convicting every guilty person.
We are not talking here about conviction or acquittal but about the freedom of the press to report, within the bounds of defamation, where criminal allegations are made, pre-charge, against teachers. We have to balance their vulnerability to unfair reporting against the undue sheltering of teachers, the interests of actual and potential victims and the interests of the public.
I turn finally and briefly to paragraph 112 of the June report of the JCHR, which states that,
“defamation proceedings offer no protection”,
to a teacher,
“where a report states that an allegation has been made”,
provided that it,
“does not assert that the allegation is true”.
The noble Lord, Lord Hill, referred to this in his earlier reply.
As one who has done a considerable amount of defamation work and overcome that defence put up by newspapers, I can only think that the committee is wrong when it says that libel proceedings offer no protection. The Reynolds case in 2001 and the Jameel case six years later prevent newspapers sheltering behind the defence of qualified privilege—or reportage, as it is called, in relation to a matter of public interest unless they comply with sensible tests. In the Jameel case, the noble and learned Lord, Lord Nicholls of Birkenhead, said that newspapers would not have a defence unless the report was responsible, fair, on a matter of public interest and in compliance with certain other tests, which would include the obligation to evaluate fairly and sensibly the basis of an allegation. They cannot simply recycle a verbal report of an allegation or something given to them by letter without checking. They have also to check with the person aggrieved, the teacher. They have to give the gist of both sides of the story and, importantly, they have to look at the whole tenor and pitch of the article. I hope that that is enough to show that teachers who are the subject of sensational, biased, unfair reports pre-charge have protection. One or more of the unions might make it their business to pick up a couple of test cases, which they could take and use to make their point. Believe me, that would reverberate around Fleet Street very quickly, as my noble friend Lord Black will confirm.
Teachers might also take up the invitation of the Press Complaints Commission—again the noble Lord, Lord Hill, referred to this—to report grievances in relation to pre-publication publicity. He rightly said that there had been none. But, as the JCHR report says, the notion that no complaints are made because it is a useless thing to do is simply not right. First, it costs nothing to make a report to the Press Complaints Commission. Secondly, it has very real powers over its newspaper members. It can and does make them publish retractions and apologies. So I do not agree with what it and my noble friend have asserted.
To summarise, I sincerely believe that the case for this most important of limitations on press freedom, albeit put forward with sincere concern for a most highly valued section of our community, is unsafe. Surely, the onus is on those who would restrict press freedom, especially to a single group and in a way never ventured before, to prove beyond reasonable doubt that such a change is unarguably essential. But, as I have endeavoured to show, the Government’s lack of direct relevant evidence as to the present extent of pre-charge publicity affecting teachers is all but total. It is that publicity, and that alone, which Clause 13 addresses. Not only is the need for the clause wholly unproven but it could and will unfairly disadvantage pupils and, in the worst cases, prevent teacher abuse ever seeing the light of day if a charge for whatever reason, and there are many, is never brought or if a school fails to bring disciplinary procedures against a teacher, and there are many reasons why that might be the case. Nor will truth be a defence, as I have indicated. For those main reasons, I propose that Clause 13 should not stand part of this Bill.
My Lords, I did not think that there would be anything for me to say on the clause stand part debate but I want to make one broad comment. When I opened the consideration of the first group of amendments, I introduced the criterion that one of the bases on which we should make a judgment about this matter is the basis of the evidence. In summing up that debate, I pointed out that the Government have not produced what the Minister said was important; namely, an evaluation of the impact of the current measures on reporting of pre-charge allegations against teachers. The whole Committee has to be very grateful to the noble Lord, Lord Phillips, who has researched this and has produced some figures today, which look remarkably small in terms of the incidence of pre-charge reporting of allegations against teachers.
Today, I will go no further than to say to the Minister that, at the very least, he has to come back to every Member of the Committee before Report with as definitive information and statistics as he can gather on the current incidence of the reporting of cases against teachers before charges are made and some evaluation of the quality of that evidence. One point that I should make to the noble Lord, Lord Phillips, is that I think that his figures are very compelling. I cannot make a judgment today on whether they are the total number of cases or not. It may not be possible to get that information, but the Committee, in deliberating further on Report, must have the best information that the Government can put forward on that matter and an evaluation of how robust that information is so that we can make a judgment.
My Lords, I will delay the Committee for just one minute. I originally raised these matters at Second Reading and I wanted to say a few words in support of the noble Lord, Lord Phillips, who has made a compelling and overpowering case. I am also mindful of the remarks that the noble Baroness, Lady Howarth, made earlier about the work of the NSPCC, Childline and others involved in this area.
During our debate in Committee on Monday, I was struck by something that the noble Lord, Lord Peston, said. He said 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”.—[Official Report, 4/7/11; col. GC 8.]
To sum up, my main concern with this clause is that what we are doing—this is the real mischief of this clause—is removing from vulnerable children the right that every other citizen in the country enjoys, which is to publicise a grievance or complaint. We should be very clear about that. We are saying to children—this is where the work of the NSPCC and others has been so important in previous years—“Unlike any other group in society, your complaints are treated as false until a charge is made”. I do not believe that that is what the Government want. I support the noble Lord, Lord Phillips.
My Lords, I will also be brief as we have already rehearsed many of the arguments this afternoon, so I will not detain the Committee for long. The noble Baroness, Lady Hughes of Stretford, referred to assembling the information that we have. We will, of course, do that although some of it is slightly harder to come by, given its nature.
We have moved a long way in the course of the afternoon—this often happens in your Lordships' House—from the views that have been expressed to us all by the unions and by teachers. Some of their figures as regards the scale of false allegations are so high that I do not believe them in the sense that this is the sort of story that people relate to other people and so it spreads. Like me, the noble Baroness will have seen survey research which shows that 50 per cent of teachers claim to know someone who has been the subject of false allegations. That seems to me a suspiciously high and precise figure. One should not suggest that there is not a problem that needs to be addressed or that a consequence of this measure is that child protection and safeguarding will be weakened.
I support the great British media but arguments have been adduced in relation to the crusading role of the media in child safeguarding issues. I can think of many cases where that is true but I can also think of many where the crusading purpose has been directed at increasing newspaper sales and producing salacious articles. We must be careful not to go too far in taking the moral high ground and taking our eyes off some of the practical issues which teachers and head teachers tell us that they face and fear. We should see this provision as part of a broader range of measures to try to make teachers feel that they have the backing of us all in their difficult job of maintaining order and discipline so that children can learn. One must not lose sight of that point.
My noble friend Lord Phillips quoted powerfully from the exchange between the JCHR and the Secretary of State. Paragraph 1.48 of the JCHR report states:
“However, we are satisfied that the evidence and justifications relied on by the Government are sufficient to justify the imposition of such reporting restrictions as a necessary and proportionate means of achieving the legitimate aim of protecting the reputation and rights of teachers and supporting teachers in their role as the professionals responsible for classroom discipline”.
It is worth recalling that the JCHR concluded that the evidence—not as complete as my noble friend would like—led it to that conclusion.
In the course of this afternoon, there have been forceful arguments in favour of extending the clause from the Benches opposite and from some of my noble friends. There has also been opposition to its current breadth. I am aware of the concerns. I would be happy to speak to my noble friend about the earlier issue and try to provide further reassurance. As I have said, we will bring forward the review of the impact of these provisions and we will continue to monitor closely the issues that have been raised.
I argue that these provisions would not enable a teacher to get off scot-free from wrongdoing. Safeguarding duties remain in place. The clause states simply that anonymity should remain in place until someone is charged. I have a difference of opinion with my noble friends Lord Phillips and Lord Black about the effectiveness as a practical act of recourse of the PCC or of a libel action. I understand the arguments of both noble Lords—one with great experience as a lawyer, the other with great experience of working with the press. In previous situations, people have always said, “There’s always the PCC”, or, “You can always bring a libel action”. I am afraid that I do not believe that the PCC is an effective protector of people, and I do not believe that bringing a libel action would be a practical course of action for a teacher who has had all kinds of awful things going on and their reputation traduced.
Those are the arguments in favour of the clause. I have listened to the points raised by noble Lords on all sides this afternoon. I will try to provide some more statistical information, which I hope will help the Committee. I will also reflect on the points that have been made. On that basis, I beg to move that Clause 13 stand part of the Bill.
As before, I am grateful to the Minister. I ask him to reflect on the statistics, as the noble Baroness, Lady Hughes, invited him to do. It is essential that the unions provide us with concrete examples of pre-charge newspaper reports of a salacious nature, because so far they have not produced one. The only reports they have produced have been four-line factual reports. They must produce pre-charge reports.
Finally, the noble Lord, Lord Hill, berated me—no, not that. He would not do that.
That would be libel.
No, it would be slander. He very reasonably said, “Look at the end of the JCHR report where it exonerates the Government”. Indeed it does, but how it does is beyond my tiny brain to understand. I suspect that the committee was confused.
As a member of the Joint Committee on Human Rights, I feel that I ought to respond to that point. I am very sympathetic to the points that have been made, particularly by my noble friend Lord Black of Brentwood. It is my experience in the time that I have been on the committee that its conclusions are made very carefully, after a lot of very careful deliberation. I do not have any experience of the committee concluding in that way without being absolutely confident in its views. It is worth reinforcing that point.
I am grateful to the noble Baroness, and I would have been more cautious in my remarks had I known she was here. I think they are blinded by the numbers of allegations thrown around. Those tables are unscientific to an extraordinary extent. Let us remember that all we are interested in is pre-charge newspaper publicity. If the noble Baroness reads her long report, she will find no satisfactory evidence of that. If it is there, let us please have it. On that basis, I shut up.
Clause 13 agreed.
My Lords, this may be a convenient moment for the Committee to adjourn until Monday at 3.30 pm.
Committee adjourned at 7.41 pm.