Clause 71: LEAs in England: duty to have regard to religion or belief in exercise of travel functions

356.     This clause inserts a new section 509AD in the 1996 Act.

357.     Section 509AD requires local education authorities in England to have regard to the religion or belief of parents in exercising their travel functions.

358.     Subsection (1) provides that in exercising their travel functions (which are defined in subsection (2)), a local education authority must have regard to any wish of a parent of a child, student of sixth form age or adult learner, for that person to be provided with education or training at a particular school, institution or other place, where that wish is based on the parent's religion or belief.

359.     Subsection (2) provides that the travel functions to which this duty applies are those set out in sections 508A, 508B, 508C and 508E, Schedule 35C and sections 508F and 509AA.

360.     Subsection (3) provides that "religion" means any religion; "belief" means any belief; and that references to religion or belief include references to a lack of religion or belief.

Clause 72: Further amendments relating to travel to schools etc.

361.     This clause refers to a number of mainly consequential amendments contained in Schedule 10. The only substantive amendment relates to section 6 of the Transport Act 1985, which provides an exemption from a general requirement for bus services to be registered with the Traffic Commissioner. The amendment means that school bus services operated under the new sections 508B(1), 508C(1) and 508F(1), and the new Schedule 35C to the 1996 Act, are exempted from the requirement imposed by the Transport Act 1985 to be registered with the Traffic Commissioner, as is currently the case with closed school bus services not levying fares.

362.      The Schedule also details the changes made to section 509 of the 1996 Act so that it becomes a 'Wales only' provision.

Clause 73: Provision of food and drink on school premises etc.

363.     Subsection (1) of this clause replaces section 114 of the 1998 Act with a new section 114A. It extends the existing power to make regulations in connection with nutritional standards for school lunches to cover all food and drink provided on the premises of maintained schools. It also permits the regulations to apply to food or drink provided by a local education authority or governing body of a school to registered pupils at any place other than the school. The regulations may contain exceptions to the requirements prescribed. It is intended that the regulations will introduce new standards (food based and nutrient based) to increase pupils' access to healthier food/drink options and essential nutrients, and reduce the amount of sugar, salt and fats contained in foods/drinks provided to pupils by local education authorities and school governing bodies.

364.     Subsection (2) of the new section 114A provides that the regulations may require certain standards to be complied with; that drinking water must be freely available on school premises; and that specific types of food and drink may not be provided.

365.     Subsection (3) of the new section 114A exempts food and drink brought on to school premises for personal consumption.

366.     Subsections (4), (5) and (6) of the new section 114A place on local education authorities and governing bodies a duty to ensure that the standards and other requirements set out in the regulations are complied with when food or drink is

provided on school premises; and when those bodies provide it to registered pupils at other places.

367.     In the case of food or drink provided by local education authorities or governing bodies, the requirement to secure compliance applies whether or not the food/drink is provided under a statutory duty (e.g the duty to provide free school lunches under section 512(3) of the 1996 Act).

368.     Subsection (8) of the new section 114A allows regulations to specify:

a)     different requirements for particular classes or descriptions of schools or persons;

b)     periods of the day during which certain requirements apply.

369.     This is intended to give the necessary flexibility to ensure that the standards that are set are suitable for differing age groups or types of schools. It is also intended to allow appropriate standards to be applied to food and drink provided at after school clubs and at breakfast service.

370.     Subsection (10) of the new section 114A ensures that references in the new section 114A to food or drink provided by local education authorities or governing bodies include references to food or drink provided by contractors under arrangements made with local education authorities or governing bodies.

371.     Subsection (3) is a transitional provision preserving existing regulations made under section 114 of the 1998 Act. To avoid any transitional dilution of current lunch standards, this allows existing standards to remain in force and to operate in tandem with new food based standards, until such time as the nutrient based standards are commenced.

Clause 74: Power to charge for provision of meals etc

372.     This clause removes the current duty of local education authorities (under section 512ZA of the 1996 Act) and governing bodies (under section 533 of that Act) to charge for food and drink provided by them, and replaces it in each case with a power to charge for such provision.

373.     This relaxation is intended to help those local education authorities and governing bodies who would like to provide pupils with some or all meals/drinks/refreshments, free of charge, to do so. This flexibility means that local education authorities will no longer need to apply for an order under section 2 of the 2002 Act (powers to facilitate innovation) in order to offer some free food/drink to their pupils.

PART 7: DISCIPLINE, BEHAVIOUR AND EXCLUSION

374.     Following the Learning Behaviour report of the Practitioners' Group on School Behaviour and Discipline, (October 2005, http://www.dfes.gov.uk/behaviourandattendance/about/learning_behaviour.cfm) the White Paper Higher Standards, Better Education for All (Cm 6677) set out a number of commitments by the Government for further improving standards of school discipline. This part of the Bill carries forward those commitments in the White Paper on school discipline requiring primary legislation. That includes the establishment of a statutory power to enforce school discipline and more specific measures relating to excluded pupils and parental responsibility for the behaviour of children.

375.     The provisions on enforcement of school discipline have been considerably developed since the White Paper was published, through a consultation paper and discussion with key stakeholders. As a result, the Bill includes specific new provisions on detentions (replacing section 550B of the 1996 Act 1996) and on items confiscated from pupils. In line with the consultation paper, the Bill also re-enacts other existing legal provisions on the responsibilities of governing bodies for discipline and determination by the head teacher of a behaviour policy (section 61 of the 1998 Act) and on physical restraint of pupils (section 550A of the 1996 Act).

Clause 75: Responsibility of governing body for discipline

376.     Clause 75 defines the responsibilities of the governing body for establishing the principles shaping a school's behaviour policy.

377.     This clause re-enacts subsections (1) to (3) of section 61 of the 1998 Act with minor changes.

378.     Subsection (1) requires the governing body to ensure that the school pursues policies to promote good behaviour.

379.     Subsection (2) requires the governing body to make and review a written statement of general principles to guide the head teacher in determining measures to promote good behaviour. Where the governing body wants the behaviour policy to include particular measures or address particular issues, the clause requires the governing body to notify the head teacher. It also enables the governing body to give the head teacher further guidance.

380.     Before making or revising the statement of principles, subsection (3) requires the governing body to consult the head teacher; parents of pupils registered at the school; a sample of the registered pupils; and any persons who work at the school that are considered appropriate to consult (this would include, for instance, the kitchen staff and caretaker, if the governing body felt that their input would be valuable).

381.     Subsection (4) requires the governing body to have regard to national guidance when carrying out its functions under subsection (2). For schools in England that would be provided by the Secretary of State. For schools in Wales it would be the National Assembly for Wales.

382.     Subsection (5) specifies the types of school to which clauses 75 and 76 apply. These are all maintained schools (community; foundation; voluntary; community special; foundation special; maintained nursery), pupil referral units and non-maintained special schools. Pupil referral units are not explicitly mentioned in the legislation which this replaces though are within its ambit by virtue of regulations made in relation to them under primary legislation. Non-maintained special schools are an addition to the schools to which the existing legislation applies. This subsection also explains that "governing body" for a non-maintained special school means the proprietor of the school, the person or body of persons that manages the school.

Clause 76: Determination by head teacher of behaviour policy

383.     Clause 76 defines the responsibilities of the head teacher for establishing and maintaining a behaviour policy for the school that promotes self-discipline, respect for others and proper regard for authority.

384.     This clause re-enacts with amendments subsections (4)-(7) of section 61 of the 1998 Act. The clause includes provision that the head teacher, when determining the behaviour policy, must do so with a view to "securing that pupils complete any tasks reasonably assigned to them in connection with their education" in addition to the other considerations laid out in subsection (4) of 61 of the 1998 Act. The clause also enables the head teacher to include in the behaviour policy reasonable measures to regulate the behaviour of pupils when they are off the school site or when they are not under the control or charge of a member of the school staff.

385.     Subsection (1) requires the head teacher to determine measures (which may include rules and provision for enforcing them) that promote self-discipline and a proper regard for authority, encourage good behaviour and respect for others, prevent bullying, secure that tasks are completed, and generally secure an acceptable standard of behaviour by pupils. These measures constitute the school's behaviour policy.

386.     Subsection (2) requires the head teacher to follow the governing body's statement of principles and have regard to any notification or guidance given by the governing body (see the note on clause 75(2)).

387.     Subsection (3) requires the head teacher to determine what standard of behaviour should be regarded as acceptable in so far as it is not determined by the governing body.

388.     Subsection (4) enables the head teacher to determine (to such an extent as is reasonable) measures to regulate the behaviour of pupils when they are not on school premises or under the control or charge of a member of the school staff. This would, for example, allow rules governing behaviour on the journey to and from school and during work experience placements.

389.     Subsection (5) requires the head teacher to set out the behaviour policy in a written document and publicise it by making it generally known to staff, pupils and parents, in particular, by bringing it to their attention at least once a year.

Clause 77: Meaning of "disciplinary penalty"

390.     Subsection (1) defines "disciplinary penalty" for the purposes of this Chapter of the Bill as a punishment imposed on a pupil by any school at which education is provided for him, where his conduct falls below what can reasonably be expected of him because (for example) he fails to follow a school rule or an instruction given by a member of staff. The reference to any school at which education is provided for a pupil is intended to cover both the school a pupil normally attends and any other school he attends, for example, for a particular course.

391.     Subsection (2) makes it clear that "conduct" includes conduct off school premises and where the pupil is not under the control or charge of staff (so far as that is reasonable) and includes conduct which consists of a failure to comply with a disciplinary penalty previously imposed.

Clause 78: Enforcement of disciplinary penalties: general

392.     This clause specifies the conditions that make lawful the imposition of a disciplinary penalty on a pupil at any school at which education is provided for him.

393.     Subsection (1) explains that this clause applies to any disciplinary penalties imposed on a pupil other than exclusion.

394.     Subsections (2), (3), (4) and (5) specify the conditions that must be met for the imposition of a disciplinary penalty to be lawful. They are summarised below.

a)     The penalty does not breach any statutory requirement or prohibition. This would, for example, prevent the imposition of a disciplinary penalty in circumstances which involved a breach of race or sex discrimination legislation.

b)     The penalty is reasonable in all the circumstances (subsection (6) specifies issues that must be taken into account in deciding whether the imposition of a penalty is reasonable).

c)     The decision to impose the penalty is made by a member of the staff of the school. Paid members of staff may impose a penalty unless the head teacher has decided they may not impose it. Unpaid members of staff (parent volunteers, for example) may not impose a penalty unless

authorised by the head teacher to impose the penalty on such a pupil and where that authorisation is reasonable.

d)     The decision to impose the penalty was made and any action taken on behalf of the school to implement the decision was taken on the school premises or elsewhere at a time when the pupil was under the lawful control or charge of a member of staff of the school (for example on an educational visit).

395.     Subsection (6) specifies the considerations to be taken into account in deciding whether the imposition of a penalty is reasonable. They are:

a)     whether the imposition of the punishment is proportionate in the circumstances of the case; and

b)     any relevant personal characteristics of the pupil of which the person imposing the penalty should reasonably be aware, including the pupil's age, any special educational needs and/or disability he may have and any religious requirements (for example dress) affecting him.

396.     Subsection (7) states that, for the purposes of subsection (6) a pupil has a disability if he has a disability for the purposes of the Disability Discrimination Act 1995.

397.     Subsection (8) states that a head teacher's decisions on whether staff should be able to impose penalties on pupils may be made in relation to individual staff or groups of staff; in relation to an individual pupil or pupils; or in relation to an individual penalty or types of penalty. So a head teacher could, for example, decide that only teachers who are heads of year or heads of department could put pupils in detention or that a volunteer helping to supervise an educational visit should be able to withdraw privileges from pupils who misbehave on the visit.

398.     Subsection (9) makes detention outside normal school hours subject to the conditions specified by clause 79.

399.     Subsection (10) makes it clear that nothing in this clause legitimises corporal punishment.

400.     Subsection (11) has the effect that this clause does not remove powers that heads and school staff have in addition to the powers conferred by this clause. These may include powers conferred on them by the pupil's parent.

401.     Subsection (12) defines a "paid member of staff" as a member of staff who works at the school for pay under a contract of employment or a contract for services. The latter would include supply teachers provided by agencies. The clause makes clear that the contract of employment or contract for services need not be made with the governing body or proprietor of the school (so that it includes local education authority employed staff that may be working at the school).

Clause 79: Enforcement of disciplinary penalties: detention outside normal school hours

402.     This clause specifies the conditions that make the detention of a pupil outside normal school hours lawful. These are in addition to the conditions specified in clause 78.

403.     This clause (read with clause 78) replaces section 550B of the 1996 Act.

404.     Subsection (1) provides that the clause applies to a disciplinary penalty that involves detention outside normal school hours.

405.     Subsections (2) and (3) provide that, in addition to the conditions specified in clause 78, detentions may only be given to pupils below the age of 18; on a "permitted day of detention"; and if the pupil's parent has been given 24 hours' notice. In addition, the head teacher must have made the school's policy on detention outside of school hours known within school and to parents.

406.     Subsection (4) has the effect that in considering whether the imposition of a detention is reasonable regard must be had (in addition to the factors specified in clause 78(6)) to whether suitable travelling arrangements can reasonably be made by the pupil's parent.

407.     Subsection (5) enables the school to give a parent the required 24 hours' notice by any effective method. (This requirement would not apply to detentions during normal school hours, such as lunch times.)

408.     Subsection (6) has the effect that this clause does not remove powers that heads and school staff have in addition to the powers conferred by this clause. These may include powers conferred on them by the pupil's parent.

409.     Subsection (7) defines a "permitted day of detention" as:

(a) a school day (other than one on which the school has given the pupil leave of absence);

(b) a Saturday or Sunday during the school term (other than weekends preceding or following half-term breaks); and

(c) a non-teaching work day (more commonly known as a "training day" or "INSET day") that may fall in or out of the school term (other than those excluded in regulations).

Clause 80: Power of members of staff to use force

410.     This clause enables a member of staff to use reasonable force to prevent a pupil from committing an offence, causing personal injury, damaging property or doing something that prejudices discipline at the school.

411.     The clause re-enacts section 550A of the 1996 Act with minor changes.

412.     Subsection (1) enables a member of staff to use reasonable force in certain defined circumstances: to prevent an offence or the continuation of one; to prevent personal injury or damage to property; and to prevent anything which prejudices the maintenance of good order and discipline at the school. Thus, for example, reasonable force (such as leading by the arm) might be used to enforce an instruction for a pupil to leave a class room (in circumstances where any of paragraphs (a) to (c) of subsection (1) apply).

413.     Subsection (2) specifies that the power to use force extends to members of staff at any school at which the pupil is receiving education (this allows for situations where, for example, a pupil is receiving education at a school other than the school which he normally attends).

414.     Subsection (3) restricts the use of this power to when both the member of staff and the pupil are on school premises or in other situations where the member of staff has lawful control or charge of the pupil involved (for example on an educational visit).

415.     Subsection (4) makes it clear that subsection (1) does not legitimise corporal punishment.

416.     Subsection (5) has the effect that the power provided by subsection (1) does not remove any powers that heads and school staff may have in addition to the powers conferred by the clause. These include common law rights of self-defence.

417.     Subsection (6) specifies that an "offence" covers behaviour by younger pupils that would be an offence if they had attained the age of criminal responsibility.

Clause 81: Defence where confiscation lawful

418.     This clause protects staff against civil or criminal liability where a lawfully confiscated item is retained or disposed of.

419.     Subsection (1) specifies that this clause applies where something a pupil has with him or in his possessions is seized and retained or disposed of.

420.     Subsection (2) protects any person who seizes, retains or disposes of such an item from liability in any proceedings if he proves that the seizure, retention or disposal was lawful.

421.     Subsection (3) provides that nothing is this section applies where an item is seized under section 550AA of the 1996 Act. The Violent Crime Reduction Bill (currently before Parliament) contains provision to insert a new section 550AA into the 1996 Act dealing with the seizure of knives, blades or offensive weapons or any other thing which there are reasonable grounds for suspecting is evidence in relation to an offence, found in the course of a search of pupils. The new section 550AA makes provision for what is to be done with an item seized under that section.

422.     Subsection (4) has the effect that this clause does not prevent anyone using any other defence (for example under common law) that they would be entitled to use in any civil or criminal action.

Clause 82: Interpretation of Chapter 1

423.     This clause directs the reader to clause 77 for a definition of "disciplinary penalty". It defines "member of staff" for the purposes of this Chapter as any teacher who works at the school and any other person who, with the authority of the head teacher, has lawful control or charge of pupils at the school. This may include members of the support staff of a school. It would also include unpaid volunteers who are put in charge of pupils (for example on an educational visit). The clause also specifies that "possessions", in relation to a pupil, include any goods over which he appears to have control.

Clause 83: Repeals consequential on provisions of Chapter 1

424.     This clause repeals the legislation that clauses in this Chapter replace. That includes existing legislation on governing bodies responsibilities for discipline, behaviour policies, detention and physical intervention.

Clause 84: Parenting contracts

425.     Section 19 of the Anti-social Behaviour Act 2003 makes provision for schools and local education authorities to enter into voluntary "parenting contracts" (as defined in the section) with parents in cases of exclusion from school or truancy. This clause amends section 19 to enable contracts to be used in cases of misbehaviour where the pupil has not been excluded.

426.     Subsection (2) inserts subsection (1A) which provides an alternative trigger to enable schools and local education authorities to enter, in certain circumstances, into parenting contracts with parents where the pupil has not been excluded. These circumstances are where the school or local education authority have reason to believe that a pupil has engaged in behaviour which:

(a)     has caused or is likely to cause significant disruption to the education of other pupils or significant detriment to the welfare of that pupil or other pupils or to the health or safety of any staff; or

(b)     forms part of a pattern of behaviour which (if continued) could lead to the pupil being excluded.

427.     Subsection (2) also inserts subsection (1B) which makes clear that such behaviour can take place at school, or elsewhere if reasonable for the school to regulate it.