Education Bill

Baroness Hughes of Stretford Excerpts

Thursday 30th June 2011 Grand Committee

[Lord Storey]

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

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

[Baroness Hughes of Stretford]

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

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

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

[Baroness Morris of Yardley]

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

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

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

[Lord Hill of Oareford]

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

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

[Baroness Hughes of Stretford]

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

[Lord Hill of Oareford]

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

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[Baroness Hughes of Stretford]

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

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

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

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

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

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

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

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

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

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

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

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[Lord Willis of Knaresborough]

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

[Baroness Hughes of Stretford]

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

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

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

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

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[Baroness Warnock]

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

[Baroness Hughes of Stretford]

I agree in principle. The wording in the amendment,

“to retain an excluded pupil on the roll”,

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

[Baroness Howells of St Davids]

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

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

[Baroness Hughes of Stretford]

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

[Lord Hill of Oareford]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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