Education Bill

Lord Touhig Excerpts

Wednesday 26th October 2011 Lords Chamber

If a school—let us say that it is an academy, because we are talking about schools which are their own admissions authorities—decides that the adjudicator is simply wrong and has misinterpreted its policies and practices, who then will enforce the change necessary for the academy to comply with the admissions code? In the array of measures that the Minister has put in the Bill and talked about today, it is still the case as far as we can see that that is the end of the road, no matter what the adjudicator says. If a school digs its heels in, there is no way in which the views of the adjudicator can be enforced. I would be grateful if the Minister could clarify whether, on both of those issues, my understanding is right and respond to the questions that I have asked him.

[Lord Touhig]

Subsection (2)(a) of the new clause proposed by Amendment 69 broadens the range of persons who can object to a school’s admission arrangements. That seems to leave the door open to people who have no direct interest in a school’s admissions policy to be able to object. What will the Government do to prevent these vexatious objections?

[Lord Alton of Liverpool]

My Lords, I support the point that the noble Lord, Lord Touhig, has made. I know that great concern has been expressed outside your Lordships' House that the provision could give rise to vexatious complaints being made by groups who have no interest whatever in the school concerned. I hope that the Minister will be able to reassure us that that will not be the case.

--- Later in debate ---

[Lord Touhig]

My Lords, I will not detain the House for long. I was going to say a few words about the amendment of the noble Lord, Lord Avebury, but the noble Lord, Lord Alton, has covered the points that I would have made. In an exchange with the noble Lord, Lord Avebury, the other day I said that those of us of faith and those who are secularists—such as him—have to coexist. We have to try to find ways through the problem about the Isle of Wight, which he has properly highlighted. However, that is perhaps better decided by local people than by putting something in the Bill.

I shall say a few words in response to the three amendments of my noble friend Lady Massey of Darwen. The Bill provides that where a new school is required, the local authority must consider the establishment of an academy or a free school before consideration is given to any other type of school. From the point of view of the Catholic education authorities, that would be a disadvantage. In any entirely new academy or free school, priority can be given to children of faith in relation to only 50 per cent of the places in cases of oversubscription, and that would clearly be a disadvantage. The Bill therefore sought to compensate for and counter that disadvantage by making provision to allow voluntary-aided schools to be established more easily.

The amendment moved by my noble friend would effectively limit the opportunity to establish new voluntary-aided schools. That would be a handicap, especially where there is a demand for them—and there is certainly demand in parts of London where there has been a rapid growth in the Catholic population in recent years. The other disadvantage of my noble friend’s amendment is that, as I understand it, if it were part of the Bill, academies and free schools would be the only schools that could be established, and I do not think that that is the policy of our party.

[Lord Young of Norwood Green]

My Lords, I rise to speak primarily to Amendment 70A, which was moved by my noble friend Lady Hughes of Stretford. I must admit that it is a curious irony that a Government who often proclaim their belief in localism and plurality should seek to impose a prescriptive solution on new schools. I was recently looking at the range of schools that, for instance, the Church of England provides in London. There is a wide variety of about 150 schools; some are academies and some are community schools. Although academies are very much the flavour of the day, they are not—and surely should not be—the only solution. It would be dangerous to assume that there is only one solution.

I should perhaps declare an interest as a governor of my local community primary school, and as someone who participates in the Lords outreach programmes and visits a wide range of schools. One can see successful academies and one can see successful community schools. My noble friend is absolutely right to say that Amendment 70A is not anti-academy by any means. It sends the message that the issue should be left to local determination. I should be very interested to hear the Minister’s response.

Education Bill

Lord Touhig Excerpts

Monday 24th October 2011 Lords Chamber

I support at least that part of the amendment that would provide that, in state schools with no faith, there should be not collective worship but collective assemblies with guidance on how to live your life.

[Lord Touhig]

My Lords, we seem to be repeating the arguments we had in Committee. The noble Lord, Lord Avebury, has taken the argument a little further. His description of forcing worship down throats was exaggerated and perhaps, on reflection, the noble Lord might think it was not worthy of him.

Currently, it is a legal requirement that all schools should have a collective act of broadly Christian worship. Parents who wish to withdraw their children from this collective act of worship have a legal right to do so if they wish. I can speak only from the perspective of Catholic schools in this country. Thirty per cent of pupils in Catholic schools are not Catholic, yet only 0.05 per cent of the parents of these children ask for them to be withdrawn from the collective act of worship in school.

I remember at Committee stage saying that the collective act of worship was a visual recognition of the Christian heritage of this country. It enables children, whether of faith or not, to engage and understand the history of this country because, whatever we might say, the history of this country is very much connected with our Christian heritage. That is a fact whether you are a Christian or not. England remains a multifaith, mainly Christian, country. Imposing a secularised approach to assemblies would mean a minority would now decide on these matters. With great respect to the noble Lord, who told us at Committee that he is a confirmed secularist, we all have to co-exist—those of faith and those not of faith. It seems to me that the best way to do that is to allow the existing law to continue, and people who do not wish their children to take part in the collective act of worship need not let them do so.

The right reverend Prelate made a point in his speech about the fact that in this House we have an act of worship—we had one at 2.30 pm. If it is good enough for Members of this House to take part in a collective act of worship, why should the children of this country not take part in a collective act of worship? The noble Lord, Lord Avebury, also said that no one should be forced to take part in rituals they do not agree with. We had two new Members introduced to the House this afternoon. Afterwards I heard a few comments from people who said, “Isn’t that awful? Shouldn’t we get rid of this old ritual?”. Yet we all take part in that ritual in order to get into this House. We have to maintain our standards here. If a collective act of worship, from which you can absent yourself if you wish, is acceptable for Members of your Lordships’ House, then it is certainly acceptable for schoolchildren in this country.

[Lord Cormack]

My Lords, I would like briefly to support what the noble Lord, Lord Touhig, just said. We had a very interesting debate in this House last week on the teaching of history in schools. There were divergent views, but there was a general consensus that we owe it to our children to ensure that they have a reasonable grasp of the history of their country. We also owe it to our children that they should have a reasonable grasp of the literature of their country and the civilisation of their country. Ours is a Christian civilisation, which has moulded so much of our literature and our art and which is, indeed, the very fabric of the soul of the nation. In the 2001 census, over 70 per cent of people in the country said that they considered themselves to be Christian, whereas fewer than 20,000 said that they were atheists.

We do have a duty to expose our young people to what I consider to be the truths of the Christian religion but what we must all consider to be the bedrock of our civilisation. If when they leave school they choose to reject that, that is, of course, entirely up to them. They can do so on the basis of mature judgment and of knowledge; one cannot make a decision on the basis of mature judgment and ignorance. Therefore, it is crucial that we give our children the opportunity to know what living in a Christian country is like—a Christian country, the hallmark of which is, and always must be, tolerance and understanding of others who take a different point of view.

We would be moving in a very dangerous direction if we were to accept the amendments, which were so mellifluously moved by the noble Lord, Lord Avebury, for whom I have considerable respect, as I have for the noble Baroness, Lady Turner. Lord Touhig made a point about our own act of worship. What was interesting, when we briefly debated this a few months ago, was that sitting by me was one of our Members who is a Hindu, and he particularly said that he felt this was a most important part of the parliamentary day.

I do not like to take the name of a Member who is not present, but there is no more staunch defender of the establishment in this country than the Chief Rabbi, the noble Lord, Lord Sacks, who on many occasions has put it on record that he believes that the maintenance of the Church of England and the established church is very important to this country. He believes, as I do, that the teaching of certain truths, certain values, and certain issues is of equal importance. We would be taking a wrong step if we were to be seduced by the amendments of the noble Lord, Lord Avebury.

Education Bill

Lord Touhig Excerpts

Tuesday 18th October 2011 Lords Chamber

[Lord Low of Dalston]

My Lords, I shall speak also to Amendments 24 to 28. I shall speak as briefly as I can because these amendments had a good airing in Committee. However, I was unfortunately unable to be present when they were discussed and so I will take this opportunity to say a few words on them—not just for the sake of it, of course, for the Government have come some way to meet us, but because some concerns remain, which have been raised with me by the Special Education Consortium, on which it would be helpful to have reassurances from the Minister.

The amendments relate to Clause 4, which toughens up the arrangements for pupil exclusions. Clause 4 makes significant changes to the appeals process and removes the power from the proposed independent review panel to order the reinstatement of an excluded child except in cases of direct disability discrimination. There are many children with special educational needs who are not the subject of disability discrimination, and the purpose of the amendments is to introduce safeguards into the exclusion process to deal with their case.

Amendment 15 makes provision for regulations to require that where a pupil has been excluded from school for a fixed period on two or more occasions in a 12-month period, or is at risk of permanent exclusion, a head teacher must ensure that there is an assessment of whether the child has unidentified learning needs, that there is a review of the effectiveness of the special educational provision being made if the pupil has identified special educational needs, and that there is a review of the effectiveness of the reasonable adjustments being made if the pupil has a disability.

Amendments 24 to 28 would require regulations to make provision for a number of things: for parents to request a SEN expert to advise the panel on SEN issues; about the information parents are given on their right to request a SEN expert; the skills and qualifications that a SEN expert must have; the ability of the SEN expert to review the needs of the child and whether the school has put the correct support in place; the duty of the school to co-operate with the work of the SEN expert; and the ability of parents to select a SEN expert of their choice.

The Government have moved some way on these issues from where they started in the other place and it is clear that they do not wish to disadvantage children with special educational needs. Indeed, they have published draft guidance on exclusions which recognises the need to protect children with SEN, which I very much welcome. However, there are some outstanding concerns. The guidance is clear that head teachers should, as far as possible, avoid permanently excluding children with SEN. However, the guidance needs to be more specific and detailed at this point. Have all the steps been taken which need to be taken? This could include additional adjustments, critical extra support or other interventions which may play a crucial role in preventing exclusion. The guidance moves too quickly to discussing alternative placements without encouraging schools to consider whether they have answered all these questions. I should be grateful if the Minister could address this point in his response.

The guidance focuses heavily on preventing exclusions of statemented pupils. This is, of course, very important. However, it is important also to bear in mind that some 18 per cent of children, or roughly 1.4 million children, with a special educational need do not have a statement. I ask the Minister to consider extending the guidance to address the needs of children on school action or school action plus. Children on school action plus may have substantial needs but do not have the protection afforded by a statement of SEN. Such children are more than 20 times more likely to be excluded than the rest of the school population and so additional safeguards are clearly needed in their case.

I turn now to the remaining concerns about the SEN experts and the role they could play in advising an independent review panel. I welcome the clarity that the draft guidance brings in relation to the impartiality and expertise of the SEN expert, but retaining parental confidence is key to the success of these reforms and it is with that in mind that I have tabled these amendments again. The school’s role is key here and yet the guidance does not make clear that schools should be required to inform parents of their right to request a SEN expert when their child is excluded. The SEN expert clearly has a vital role to play in protecting the interests of the child and yet the guidance states in terms that the expert’s role does not include making an assessment of the pupil’s special educational needs or making a judgment about whether the school has taken the appropriate steps to meet the child’s needs.

As I have said, I welcome the guidance’s clarity on the need for an expert on special educational needs. However, it remains unclear whether this expert will have the requisite understanding and experience of the disability or SEN in question. I ask the Minister to consider revising the guidance to make it clearer that “expert” should also mean “relevant”.

My final point on the expert relates again to parental confidence. As it stands, the expert will be paid for by the local authority if the child is in a maintained school and by the school if in an academy or free school. While I welcome the guidance stating that local authorities should take reasonable steps to offer a choice of expert and that the expert cannot be connected with the case, it remains a concern that the paymaster should be the institution that the parent is appealing against. If it could be made unambiguously clear that parents could have the expert of their choice, that would surely help to bolster confidence in the independence of the system. I hope that the Minister can give me some reassurance on this point and on my other points as well. I beg to move.

[Lord Touhig]

My Lords, I support the amendment of the noble Lord, Lord Low, who has made a powerful case articulating the concerns that still exist despite the good debate that we had in Committee on exclusions. I do not intend to rehearse the arguments deployed in Committee, save to remind the House that the Government’s equality impact assessment states that 72 per cent of all pupil exclusions from schools in England are youngsters with special educational needs. That 72 per cent is a very high figure, and one we need to keep in mind as we seek to resolve these issues.

Yesterday, I attended the launch of Finished at School, arranged by an organisation called Ambitious about Autism. This document poses the question:

“Where next for young people with autism?”.

It contains a number of case studies and poses questions about post-16 education for youngsters with learning difficulties, particularly with autism. Among its questions, it asks for a clear, legal right to educational support up to the age of 25 for young disabled people. It says that a funding system that gives young people and families more information, choice and support is needed, as is a cross-government focus on outcomes and destinations for young disabled people, and a further education workforce with the skills to support young people with autism to achieve their ambitions. Sarah Teather, the Minister of State responsible for these matters, was present and warmly welcomed the report yesterday. She said that the Government had every intention of living up to the ambitions set out in their Green Paper. All this is to be welcomed.

Before any noble Lord questions how my argument is relevant to the question before us now of exclusions, I will explain. In England, we have 66,000 young people with autism in the 16 to 25 age group. Yet only one young person in four with autism in that age cohort continues their education beyond school. That is why we have to do everything possible to reduce the huge level of SEN exclusions from our schools. For three-quarters of young people with autism, attending school until the age of 16 is the only education experience they will ever have. That is why we have to be so careful about exclusions.

On Amendment 15, as the noble Lord, Lord Low, pointed out, the draft guidance makes some welcome noises on this but the trigger for assessment is not as clear as this amendment would make it. On Amendments 24 and 25, it would appear that parents will be told that they can request a SEN expert of their own but we do not know how this will happen or what information parents will be entitled to receive in order to achieve that.

On Amendment 26, the guidance makes it clear that the SEN adviser should have appropriate training. However, like the noble Lord, Lord Low, I am still concerned that that training should be specific to the disability of the person with SEN being examined. On Amendment 27, the guidance is clear that it will not be the role of the SEN expert to undertake an assessment of needs, which is somewhat disappointing. Finally, on Amendment 28, it will be for the local authority to select the SEN experts for the parents to choose from.

There are still many questions to be asked and answered on the whole issue of the exclusion of youngsters with SEN. I look forward to the response from the Minister, who has demonstrated to me, and no doubt to others across the House, that he is listening. He certainly did that in Committee. I hope he listens to us now.

Education Bill

Lord Touhig Excerpts

Wednesday 20th July 2011 Grand Committee

We are not asking for something new, because young people’s participation in governance has worked successfully in education and beyond. Students were able to participate as full members of school governing bodies until a change in the law in 1986. Experience shows that young people can play a valuable role in governance arrangements. For example, young people under the age of 18 have for many years been members of the Children’s Rights Alliance for England’s council of management and have been actively involved in its human rights advocacy. They have taken difficult and complex decisions about budgets, staffing and strategy, and I believe that with the right information young people provide a uniquely insightful contribution to the deliberations of many organisations. They can be just as capable as adults of making governance-related decisions. I hope that the Committee will see fit to support this amendment.

[Lord Touhig]

My Lords, I rise at the request of my noble friend Lady Howe to speak to the amendments that she has tabled. As the noble Baroness, Lady Walmsley, explained, she cannot be here today. I am delighted to be able to follow the noble Baroness. It is more than 20 years since we had our first student governors when I was chairman of a school board. They made an important contribution right at the beginning because they started with a list of complaints about what they thought was wrong with the school, particularly the quality of the food. The school governing body decided that the first task of our student governors would be to do market research among the rest of the school and to talk to the dieticians and so on to decide what we should have on offer at the school. They came forward with a very good and healthy eating programme, and what the school sold at lunchtime reflected that. They continued to make an important contribution to the life of the school and the role started to grow.

Even now, I know that a number of schools unofficially invite students along to sit on school boards. I talked to a teacher last year who told me that the hardest part of the process of getting the job in his school was being interviewed by the students because they interviewed the teachers and then presented a report to the appointments committee of the governing body. I believe it is correct that we should put the rights of students in statute and allow students to become school governors. This will improve inclusion and will give students a voice. I remember that when I got expelled from college, having accused the principal of acting like Adolf Hitler, I would certainly have liked to have had some student support, but it did not exist.

Amendments 113A and 113B are probing amendments to examine the way the Education Bill is changing the relationship between the head teacher’s responsibilities and those of the governing body and whether, as a result, there should be changes in their statutory relationship. Amendment 113A proposes removing the opportunity for the head teacher to be a full member of the governing body of a school. I must admit that over the years I have thought that they should be and that they should not be, and at the moment I conclude that they should not be. Currently, the vast majority of head teachers are members of their governing body, but with the added responsibilities the Bill proposes for head teachers, they will have a degree of conflict in reporting to the governing body and holding themselves to account as members of the governing body. The National Governors’ Association thinks there is a conflict of interest and believes that it is worth resolving.

The suggestion is that it should be solved simply by the head teacher not being a full member of the governing body but reporting to the governing body on the school’s policies and so on. Noble Lords will know that the key role of the governing body is to examine the head teacher’s proposals for the school and to agree or disagree with them. Head teachers propose the majority of strategies, policies and initiatives to their governing body and therefore will attend the governing body in any event, even though they would not be governors. However, under this amendment, they would not take part in the decisions that the governing body would reach on their policies. By way of a parallel, it is extremely unusual for the chief executive of, say, a charity to be a trustee and a member of the board, and permission has to be sought from the Charity Commission. The suggestion is therefore that this practice should be adopted by the schools sector and that these lines be removed from the Bill.

In the House of Commons, a number of Members were concerned about the undue influence that head teachers have over governing bodies. I became a school governor at the age of 18. I do not know whether that was legal. It was 1966, and I got co-opted on to a school governing body. I had experience of teaching appointments, which is a very important role of a governing body. I became chairman of the board. We had four schools in our group: two secondary schools, and two grammars schools—a boys’ grammar school and a girls’ grammar school. The headmaster of the boys’ grammar wooed the governors. He persuaded them, he influenced them, he drew them along the lines that he wanted and he inevitably got the person he wanted appointed to the job when there was a vacancy, but the head of the girls’ school had no such subtle approach. She simply told the governing body, “I want you to appoint that one”, and inevitably it ignored her. I have seen those two extremes whereby heads can have a great deal of influence, perhaps in the wrong way, particularly on teaching appointments.

This small change proposed for the composition of governing bodies will not in itself rectify the probable dysfunctional relationship. Removing the right of head teachers to sit on governing bodies would send a signal about the respective leadership roles of the governing body and the head. Understanding each other’s role is important for the effective working of the governing body. As your Lordships will know, the National Governors’ Association was pleased to see in last November’s White Paper that the Government said:

“School governors are the unsung heroes of our education system … To date, governors have not received the recognition, support or attention that they deserve. We will put that right”.

This amendment provides some much needed recognition that the role of the governing body is to monitor, to challenge and to support the head teacher in the best interests of the children in the school. The amendment would bring clarity and the good practice that exists in the charitable sector, and would greatly benefit schools. It is important that we see a very close working relationship between the head and the governing body, but it is distinct, and it is important that we recognise that.

I am sure that many of us who have served on governing bodies have had all sorts of experiences over the years where there have been dangers of conflict. I served on a governing body where we used to meet until 11.15 pm because of conflict between the governors and the headmaster, and the only way we resolved it was by all the governors eventually being removed by the bodies that nominated them and a new team being put in so that we could have better co-operation. The amendment before your Lordships will benefit and greatly enhance the way in which governing bodies and head teachers can work positively in support of their schools.

[Baroness Massey of Darwen]

My Lords, I support the remarks made by the noble Baroness, Lady Walmsley, and my noble friend Lord Touhig about having students on governing bodies for two reasons. First, it would be good for the school and, secondly, it would be good for the students to have experience of being on a governing body. We have got better at listening to children over the past six or eight years or so. I sit on a couple of boards on which young people are now represented, and they collaborate fully. We have a Youth Parliament that is incredibly powerful, sensitive and sensible. We have talked before about the importance of school councils. Having pupils as governors is an extension of that. School councils are elected. They are not just there to talk about the toilets. They talk about all kinds of important issues, such as school meals, discipline and bullying, and they talk about the ethos and curriculum of the school. This is all to the good. Schools benefit and young people benefit, so I support the amendment.

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[Baroness Sharp of Guildford]

Thank you. That clarifies the position as far as I am concerned.

[Lord Touhig]

In my part of the world we found that the primary school council was a very good conduit into the school governing body.

[Baroness Sharp of Guildford]

Certainly student councils are an important thing to encourage, but some younger students in particular would find it rather intimidating to come on to the full governing body.

I find the question of the separation of powers very interesting. The head has been a full member on all the governing bodies that I have sat on, and I have not sat on one with this separation of power. The proposals by the noble Lord, Lord Knight, worry me a little. I played a seminal role in getting parent-governors agreed back in the 1970s in London, where the ILEA was the first authority to have parent-governors and I led the London campaign for the advancement of state education. There was a need for governors to be seen as links to the local community.

Many London governing boards had managing boards for a whole cluster of schools. We found this appalling. You had the same group of governors attending governing boards for every school and basically rubber-stamping the heads’ notions. The notion of a separate governing board for each school became an important part of what we as parents wanted. The notion that the governors were critical friends of the head and helped both to support and criticise the head was very important. Because the local authority was more important than it is now, the separation of powers was perhaps less so than now seems to be the case.

I would be sad to see two things disappear. One is the notion of the board of governors providing in some sense a link between the local community and the school. Second would be the loss of the notion of the critical friend, so that you become just a scrutineer. I would also be sad to see large managing boards for groups of schools.

Education Bill

Lord Touhig Excerpts

Monday 18th July 2011 Grand Committee

[Baroness Walmsley]

My Lords, I have no interest to declare save that in previous pieces of legislation I have tried to achieve exactly the same objectives that my noble friend is trying to achieve today. I agree with what he is saying. I also agree with the noble Baroness, Lady Massey, that it is important that children are able to make decisions for themselves about something like this. We are not just talking about a piece of religious education; we are talking about worship. I wonder whether the proponents of the out-of-date law as it stands would feel the same way if this were a Muslim country and Christian children were being asked to worship in the way that Muslims do, even though they did not espouse that faith.

The noble Baroness, Lady Turner, also put her finger on the fact that this is completely out of date in our multicultural society. If it is true that academies have the freedom to decide whether or not to do this and maintained schools do not, that is not right.

[Lord Touhig]

My Lords, I declare an interest as a Christian. I am concerned about these amendments. Currently there is a legal requirement on all schools to have a daily act of collective worship of a broadly Christian nature. As has been said by a number of noble Lords, parents have the opportunity to withdraw their children from these acts of worship if they so wish and that seems to make perfect sense. These amendments erode this requirement.

Collective worship is important for two reasons. First, it is a visual recognition of the Christian heritage of our country—it is a Christian heritage. It enables children of whatever faith to engage and better understand this heritage. Secondly, it is an opportunity for children and young people to explore their own faith. For some children, that may be their only opportunity to understand the Christian faith.

I am Catholic and my family were Catholic but they were not practising. I first came into contact with the Catholic faith and Christianity by going to a Catholic school. The majority of youngsters at that time at the school were not Catholic. I might have been ahead of my time ecumenically but I went to half-past 9 mass as a Catholic and, because my neighbours were Baptists, at 11 o’clock, I went to the High Street Baptist Chapel in Abersychan and even took part in Sunday school anniversary singing “Jesus wants me for a sunbeam”.

The point is there was a good feel in the school and people took part in the collective act of worship. Some of the amendments undermine parents’ primary right as the educators of their children. Indeed, Article 2 of the First Protocol to the European Convention on Human Rights says that parents have a right to educate their children on their own religious and philosophical convictions. Amendment 93, moved by the noble Lord, Lord Avebury, would alter this requirement for all children to attend collective worship from one which is compulsory, unless parents withdraw them, to one which is voluntary. The importance of collective worship would be undermined and children might choose due to peer pressure not to take part in the daily act of collective worship.

[Lord Avebury]

Is it all right for peer pressure to compel them to take part in collective worship, although not to compel them not to take part?

[Lord Touhig]

That is not the case. It is a question of parental decision. If we accept the European Convention on Human Rights, parents have a primary right to educate their children. That is what it says.

[Baroness Brinton]

The distinction is clear in the Act about collective worship versus religious education. These amendments tackle the issue of collective worship rather than education. I am struggling to see the noble Lord’s point about how this impacts on parental choice, because parents are free to have an act of worship with their children outside school, but more importantly how it impacts on religious education if it is a collective act of worship.

[Lord Touhig]

Parents have a right to decide on their children’s education and, if they choose for their children to take part in a collective act of worship, which the law of this country so prescribes, they are entitled to exercise that right. I do not think we are entitled as legislators to change that.

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[Baroness Massey of Darwen]

Could I interrupt my noble friend? Members of your Lordships’ House are a good deal older than school children and can make their own choice.

[Lord Touhig]

Yes, indeed, and a number of Members did not come into the Chamber. It is right and proper that they should be able to exercise that right. Equally, parents on behalf of their children can exercise the same right under the law as it stands. My noble friend said earlier that the law was flouted and therefore asked why we have it, but there is a law which says you should not drink and drive. Would we imagine abolishing it because some people flout it? This morning I saw two people driving cars while using their mobile phones. Again, that is against the law, but because the law has been broken, should we take it off the statute book? Of course we should not. I do not think that that arguments carries any weight.

For the reasons I have given, it is worth while to maintain the collective act of worship in our schools and I believe it is right that that collective act of worship should be Christian in nature for the reasons I have argued. Other noble Lords may have different views, and it is important that we should respect each other’s views. The present law allows for that.

My final comment is this. One of my oldest friends, the late Leo Abse, represented Pontypool and Torfaen in the other place for over 30 years and was probably responsible for more social legislation than any Back-Bencher in the history of the British Parliament. His final words to his constituency Labour Party when he announced his retirement were these: “Tolerate everything and tolerate everyone, but do not tolerate intolerance”. I believe that these amendments lead to a degree of intolerance. I am sure that that is not the intention, but it is where I believe they will lead.

[Lord Peston]

My Lords, I start by declaring an interest, or in my case a lack of interest, in that I am an atheist. I regard all religions and religious doctrines as simply nonsensical—tout court nonsensical. Over the past few years I totally opposed the Government, who I supported, in their total misuse of public money in order to increase the vast number of religious schools in this country. It is a source of pride to me that I never once voted with my own Government on that extension and waste of public money, and I stick to that view.

Referring to my noble friend’s remarks just now, only once in my 25 years in your Lordships’ House, I ended up in the Chamber by mistake and I could not get out because the doors were locked, so I was present during the act of spiritual worship or whatever it is called. I have to say that I regarded it as one of the weirdest experiences I have ever had, in a life that has included a great many broad experiences. I could not believe what I was observing, and I say that in terms.

Having said that, I am as committed as anyone in the Room to freedom of thought, belief and expression. I have never spent any time trying to persuade anyone who was religious that they should not be. Quite to the contrary, I would regard it as a disaster in our country if our young people were not brought up to read the King James version of the Bible, one of the greatest works of literature in our history. I discovered the other day on Google that there are several other versions of the Bible, and they are so bad that they must have been written by people with the prose equivalent of cloth ears. I gather that they are more correct translations of the Hebrew, but compared with the King James version, I would not allow any child to read them.

I have no difficulty whatsoever in our children knowing about religion, but I insist that this has nothing to do with religious education. I want people to know that there are many religions. Indeed, speaking as an atheist, I think that the more religions they know about, in my view, the less likely they will be to believe that any of them can be true, because how can you have so many if they are all true? Not long ago, the Chief Rabbi made the terrible mistake of saying, “Of course, we have different religions, but we all worship the same God”. The Orthodox Jewish rabbis said, “No, we don't”, and the Chief Rabbi—mistakenly, in my opinion—withdrew his remark.

Therefore, the question is not one of religion; it has nothing to do with whether you are a believer. I reiterate my point that I am not seeking to persuade those of you who are believers that you should not be—that is your choice—but the act of assembly in school, which is vital to the unity and whole atmosphere of the school, should be conducted on a totally non-religious basis.

I would go further. My view is that the assembly should be conducted largely by the pupils, not by the head teacher or other teachers. To give an example, if it were my choice, every day I would have one of the pupils talking about some great figure in the world, their courage and what they achieved, such as Aung San Suu Kyi or the woman who is being threatened with being stoned to death by the Iranians for sticking up for what she thought was right. Pupils in schools could choose those great figures, and that is exactly the atmosphere that I would want to develop—plus the bit about someone telling the school that the first 11 lost at cricket yet again, and so on, which was certainly my experience of school assembly.

As my noble friend Lady Massey brought to our attention, the whole point of the gathering is that people meet together for the sake of producing a decent spirit in the school in which religion should have no part to play, other than that people should be aware of other people’s multiplicity of opinions and views. I would have no objection if, one day, one of the pupils who spoke decided that their address would be to say why they were a Christian, a Jew or a Muslim, but they would be saying it only as a contribution to general discussion not as a formal religious matter.

Times have changed. We need to know that the world is full of different people. When I went to school, I did not know that there were any blacks around at all. There were no blacks to be seen in any of the schools where I was. I was happy, when my children went to the local comprehensive, that they knew that there was a vast range of different people in the world. I am certain that they benefited enormously from that.

I am not certain that I like the detail of any of the amendments, and I say to my noble friend that I hope that we can come back at Report with something that we can divide on so that we can at least test the opinion of the House.

The important thing is the gathering at the beginning of the school day which unites the school and does not divide it.

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[Lord Touhig]

May I just respond to the Minister? The Government are quite wrong. This is the second occasion on which they have sought to curtail debate, but that is not their role. Members are entitled to take part in the debate as widely as they need to or want to. The Government should stop trying to intervene and control the timetable of this Committee by telling people not to speak.

[Lord Lucas]

My Lords, I think that the noble Lord is misinterpreting the rules of Committee. The Minister speaking does not curtail debate in any way; it merely gives us a bit of information on which we can base our further debate.

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[Lord Elton]

My Lords, this might be the right moment to ask the Minister to tell me in his reply—or, more probably, in correspondence afterwards—what progress has been made in implementing the requirements to identify children suffering from dyslexia and that range of specific difficulties? They were legislated for in the previous Parliament but that has not necessarily as yet been implemented. I would be grateful if he could let me know in advance of Report.

[Lord Touhig]

My Lords, we had a good debate on this issue on the second day of Committee. I do not intend to detain the Committee very long, other than to say that the Minister has been extremely helpful and thoughtful. We had a good discussion.

One point came out in that discussion but not when we debated this in Committee, although it is mentioned in the Minister’s letter. He says that he has various things to consider:

“I said that the Government needed to be mindful that individual head teachers and college principals and their collective professional associations had all expressed support for the proposals in the clauses”.

He indicated in our meeting with him that there had been objections around the country to the duty to co-operate. I have not come across that, and I do not know whether other noble Lords have. We were surprised by it, so perhaps we might look at this again on Report.

The Minister was certainly in a listening mode and said to us that most schools are now co-operating. That is a good thing, but the current legislation ensures that those which do not co-operate are obliged to do so. I do not remember who made the comment when we debated this issue on the second day in Committee, but they said that this is one bit of bureaucracy that we should welcome. I am sure that the Government will listen to us, and I do not doubt that the Minister will reach the right decision when we get to Report .

[The Earl of Listowel]

My Lords, it is encouraging to hear that the Government are approaching this in such a careful and thoughtful way. The Secretary of State has made a commitment to look at education systems around the world in order to learn from best practice. I understand that in Finland it is normal for social services and the education system to work in close partnership with each other. Perhaps, if it is easily accessible, the Minister might like to provide some information about this for the Committee, or at least look to see whether what they do in Finland is relevant to what might work best in this country.

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[Lord Rix]

My Lords, Amendment 102 addresses a variety of concerns I have in relation to the relaxing of duties of schools regarding the admissions process for children with special educational needs, including those with a learning disability. My concerns are clearly shared by other noble Lords in the amendments that surround mine.

Schools must be held to account for their admissions policies and the way they operate these policies in practice. If the parents of disabled children are to have full confidence that their children are not being discriminated against in terms of admissions, schools must be aware of their obligations under the Equality Act 2010 and make the reasonable adjustments required. In the interests of openness, transparency and the genuine empowerment of parents, the second part of my amendment would set out the rights of parents in appealing and complaining against admissions and oblige schools to publicise these details.

It is often said that information is power; I want parents to have easy access to the information to which they are entitled when it comes to challenging unfair decisions by schools over the admission of their children. However, in his letter to me to which I have already referred, the noble Lord, Lord Hill, advised me that parents and others would still have the option to make their objections known to the school adjudicator. There are also proposals to include academies and free schools, which of course I welcome. No doubt he will explain more in his response to these amendments.

[Lord Touhig]

I support the objectives in the noble Lord’s amendment. However, in voluntary aided Catholic schools and academies, the governing body is the admissions authority. Currently it can determine admissions on oversubscription criteria based on a child being a Catholic or a non-Catholic and so on. These schools are required to, and do, comply with the Equality Act 2010. I am a little concerned. Does he think his amendment, if accepted, would remove the right of the governing bodies to determine the admissions criteria based upon the existing principles?

[Lord Rix]

That is an extremely awkward question. In fairness to you, I should say that it should not remove that obligation, but I think it probably would.

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Therefore, we are overwhelmingly a neighbourhood school enterprise and I hope that we will be given the challenge that noble Lords rightly want to give. However, we should be given the flexibility to continue to say that neighbourhoods differ and that strategies that may work in one place may not work in another.

[Lord Touhig]

My Lords, I looked at Amendments 138 and 140 and was troubled and confused. After listening to my noble friend Lady Massey, I am worried again. She knows me well enough to know that I have no wish to misrepresent her in any way, but she seems to be saying that, in her view, faith schools are more likely to be homophobic, do not take youngsters from poorer backgrounds and are therefore more middle-class. If that is what she is saying, I am sure she genuinely believes it, but perhaps I may suggest—taking the point made by the right reverend Prelate—that she moves out of London and travels around the country to see what faith schools are actually doing in some of the most deprived communities in our country.

[Baroness Massey of Darwen]

I am sorry to interrupt my noble friend in full flow but I must say that what I said about the issue of homophobic bullying in faith schools was a quotation from someone in this Room. It was not my impression—I quoted someone who averred that this was the case. On his second point, I am not saying that all faith schools are of one particular calibre, I am saying that some schools undoubtedly experience what the noble Baroness, Lady Perry, said, that parents move to the grandparents’ house or to the end of the road to get into a particular school, which remains firmly ghettoised, if I may use the expression.

[Lord Touhig]

I am very grateful to my noble friend for clarifying that point, because it is important that we fully understand her views on this. I am glad that I gave her the opportunity to explain in more detail what she believes and understands. I accept her final point. I have been the governor of a faith school and there are instances where people move around in order to try to get their child into a faith school.

I am troubled and confused about Amendment 138. It states:

“No Academy may select more than 50% of its pupils on criteria based on religious characteristics”.

It goes on to say that those who attend will be required,

“to take a full part in the school’s religious life”.

It seems to state that half the school population should not be of any particular faith but that all the school population must take part in the school’s religious life. To my mind, that is wrong. I strongly support the view that parents should have the right to withdraw their child or children from the religious life of a school if they so wish. At the moment, Catholic schools that convert to academy status retain their existing admissions arrangements. The amendment tabled by the noble Lord, Lord Lucas, and the noble Baroness, Lady Perry, would mean that 50 per cent of the pupils would not be admitted on the basis of faith. This makes no sense whatsoever and is really discriminatory. My noble friend Lady Massey made the point about public funding for faith schools. The Catholic church, like others, pays a great deal of money towards supporting its own schools in any event. We should bear that in mind.

Amendment 140, moved by my noble friend Lady Massey, states,

“admission arrangements for the school should make no provision for selection on the basis of religion or belief”.

I am sure that it is not my noble friend’s intention, but that would put at risk every Catholic school and faith school in the country. What is the point of having a Catholic school, or a faith school of any kind, if there is to be no provision based on faith, belief or religion in deciding the admissions policy? I am sure it is not her intention—I am sure it would never be the intention of my party—to close every faith school in the country, but that is the risk of this amendment.

[Lord Sutherland of Houndwood]

My Lords, I remind the Committee that the issue of parents who try to move into areas near schools is not confined to faith schools. I remember the distant days of people of the most surprising political background being able to afford houses near Holland Park because it was not a bog standard comprehensive. That has gone on for quite some time in a variety of communities; it is not confined to faith schools.

I support Amendment 138. The direction of travel is the right one, to open up the community, and it seems compatible that those liberal churchmen and women whom I know would want this. There may be a practical problem. If this is seen as a restriction in terms of faith background, I am not sure that Muslim schools would be able to fill all their places. We would have to be a bit careful about that formulation. On the second part of Amendment 138, if we have faith schools, that seems to me to be part of the deal. If my parents had decided to send me to a sports academy—God forbid—part of their understanding would have been that I would spend hours in the gym and on wet, cold, miserable sports fields. Although I might never have forgiven them, that would have been part of going to that kind of school. The same applies to technical schools and other sorts of schools. I think it not unreasonable that a faith school with a particular ethos and direction should say to parents, “You understand that this is how we do things here”. Then you inspect them independently and see whether they do it in a fair and reasonable way.

Education Bill

Lord Touhig Excerpts

Thursday 30th June 2011 Grand Committee

[Lord Touhig]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Baroness Sharp of Guildford]

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

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

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

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[Lord Lingfield]

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

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

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

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

[Lord Touhig]

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

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

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

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

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

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

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

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

Education Bill

Lord Touhig Excerpts

Tuesday 14th June 2011 Lords Chamber

[Lord Touhig]

My Lords, children with a special educational need often fail to receive the support they require in school. Sometimes it is because their disability is not identified and at other times the school is simply not aware of how best to support children with special educational needs. Currently there are 88,000 school-aged children with autism in England and the vast majority of them are educated in mainstream schools. Yet parents still have to contend with a system that cannot or, sadly, more often, will not meet the needs of their child. It is not, therefore, surprising that there is a close link between disability and permanent exclusion from school.

The evidence is especially stark for children with autism. The National Autistic Society’s report Make school make sense found that 27 per cent of children with autism have been excluded from school compared with 4 per cent of other children. Of those excluded, more than a third—34 per cent—had missed a term or more of school. One in 10 children with autism missed more than a whole school year in the past two years, and a great number have been excluded many times. We have to ask the question: why is this happening in our schools today? For a child with autism, a lack of social awareness, an inability to express themselves verbally, form friendships, or being socially naïve, which are all key features of autism, can lead to isolation in the classroom, poor behaviour in the playground, and often, because a child with autism can be easily led, getting into great problems and trouble.

A school’s response can be variable. The very best schools take appropriate action to support the children, whether that is in the classroom, the playground or the dining hall. A poor school will simply escalate a child through the disciplinary route without considering why they are misbehaving or whether there is a need for alternative interventions.

Earlier this year, the Education Select Committee in the other place published a report on behaviour and exclusions. It recommended a trigger that would be set off by permanent exclusion, which would lead schools to look for the unmet needs of the child. This kind of intervention is crucial for a child with special educational needs. If the child has an undiagnosed SEN, this will be picked up at school. If it has already been identified, the school will have to look again at the support provided.

The Bill contains many provisions that impact on children with autism, not least around the issue of exclusions. It is clear that children with complex and lifelong disabilities such as autism will need a complete package of multidisciplinary support to meet their needs. The recognition of such complex needs in the SEN Green Paper was welcome. However, I remain concerned about one aspect of the Bill: the removal of the duty to co-operate. This point was made by the noble Baroness, Lady Walmsley, and also by the noble Baroness, Lady Sharp, who is no longer in her place.

In 2010, the duty in the Children's Act to co-operate was extended to include schools and to ensure that local agencies worked together. The Green Paper makes a sound case for the introduction of a single assessment of needs, and an education, health and care plan to replace the statement will be central to the Government's reform of the SEN system. I welcome these proposals. However, it is not clear how, in the absence of pooled budgets between health, education and social care, and of a legal entitlement to any part of the education, health or care plan, save for the element replacing the statement that retains statutory weight, the system will work without the duty to co-operate that the Bill will now remove. Perhaps the Minister will argue that local agencies will work together. While that will be the fervent wish of all of us, I am sure that in our experience over the years we have all seen situations where local agencies have failed to co-operate, to the huge disadvantage of a child or other individual.

It is also not unreasonable to assume that in the current financial landscape, education, the health service and local authorities will look to preserve their budgets and perhaps therefore will not be so willing to work together as closely as we would hope. The Minister for Children has stated that she believes that personal budgets will play a significant role in developing services and fostering multiagency working. This may be true in some respects. However, the paucity of specialist support services for children with autism is so severe that I doubt that we will ever be able to meet the needs of 88,000 school-age children effectively. That is why the duty to co-operate is so important.

I pose a simple question to the Minister. What evidence do the Government have that the duty to co-operate, which has been in existence for such a short time, does not work effectively? It has not been given enough time for us to assess its effectiveness. The duty to co-operate makes sense. I urge the Minister and the Government to show sense and to leave this in the legislation.