Education Bill

Memorandum submitted by the General Teaching Council for England (E 05)

Summary

Regulating Teachers – regulation of last resort

· Devolving the regulation of teacher competence to school and headteacher-level risks sacrificing coherence and consistency, increasing variability and decreasing transparency.

· It is vital that the criteria the Secretary of State will use to determine whether a teacher is to be prohibited are transparent.

· The Bill contains a duty on employers to consider referring a teacher to the Secretary of State for misconduct. It does not contain a duty to refer and so increases the risk of variability in the interpretation of acceptable professional conduct.

· Clarification is needed on whether parents and the wider public can still refer a teacher.

· The proposed sole sanction of prohibition is not proportionate or remedial. It is too crude an instrument. The sole sanction of prohibition is likely to increase the historical reluctance by employers to refer teachers and exacerbate the trend for to evade referral.

· The close liaison between the General Teaching Council for England (GTCE) and the Independent Safeguarding Authority (ISA) and Association of Chief Police Officers (ACPO) on safeguarding vulnerable pupils must continue under the new arrangements.

· The Bill offers no detail as to how performance management and the Professional Standards Framework are to be strengthened to reduce variability in teaching quality.

Teacher Registration

· The change from a register of all those eligible to teach to a single list of those who have been prohibited for misconduct or for having failed induction removes the public’s guarantee that registered teachers are eligible, suitable, properly qualified and of good standing.

· The most comprehensive and accurate data set on the teacher workforce would no longer be available to the education service or research community.

· Employers will need other, disparate, sources of information to validate teachers’ entry qualifications or standards of practice qualifications – they would no longer be available on a profession-wide basis.

Teacher Professionalism

· The proposals in the Bill remove the responsibility from the profession to set and be accountable for its professional standards and ethics.

Introduction

1. This submission relates to Part 3, Clauses 7, 8, 11, 12 and Schedules 2 and 3 of the Education Bill. It concerns the arrangements for protecting the public interest with regard to the conduct, competence and professionalism of teachers following the abolition of the General Teaching Council for England (GTCE). It draws on the experience of the GTCE and offers a public interest perspective on the introduction of new powers for the Secretary of State to investigate referrals of allegations of unacceptable professional conduct by teachers and the move from the requirement for teachers in England to be registered with the GTCE to a list of prohibited teachers maintained by the Secretary of State.

Regulating Teachers – regulation of last resort

Teacher competence

2. The intention of the Bill is that the regulation of teacher competence is to be at school- and headteacher-level via performance management and capability processes. This risks:

· a lack of coherent and consistent regulation across all schools as a result of variable interpretation of the referral process

· an increase in variable practice across schools and the "recycling" of incompetent teachers

· variable treatment of teachers which could impact negatively on teachers and learners and the potential for bias to enter the process

· a lack of scrutiny of decision-making, and

· a process that is not seen as fair or transparent by teachers or the public.

3. In addition, supply teachers are not currently subject to performance management processes and, thus, will fall outside the scope of these accountability processes.

4. The GTCE’s experience of adjudication demonstrates that conduct issues are often the manifestation of underlying issues of competence which, if they had been effectively addressed earlier, might have been resolved without recourse to the GTCE.

Sole sanction

5. The Bill proposes a sole disciplinary sanction of prohibition by the Secretary of State on teachers whose professional conduct has been found to be unacceptable, or conduct which may bring the profession into disrepute, or where there has beenrelevant criminal conviction. The Secretary of State will keep a list of prohibited teachers, which will include those who have failed satisfactorily to complete their induction period. The list will be accessible to the public.

6. It is not at this stage clear what criteria the Secretary of State will use to define the nature of misconduct which would justify prohibition. Prohibited teachers will not be able to teach in any setting and teachers in all schools in England, including independent schools, will come within the scope of the Secretary of State’s powers. It is vital that the criteria the Secretary of State will use to determine whether a teacher is to be prohibited should be transparent. To do otherwise would lack the necessary accountability and assurance of equitable treatment which is a public interest and human rights safeguard, and may lay the Secretary of State’s decisions open to legal challenge. It is doubtful that this sole sanction will provide assurance to parents that all teachers who are not prohibited are fit and qualified to practice in all circumstances. The Bill currently confers no powers of sanction with regard to teacher incompetence. While there is merit in simplicity, a single sanction is a crude instrument which may not command public confidence.

Duty to refer

7. The Bill places a duty on employers to consider referring a teacher who has been dismissed, or resigned before dismissal, to the Secretary of State for possible prohibition. It does not place on employers a duty to refer.

8. Research by NatCen [1] identified a range of barriers which have led to an historical reluctance by employers to refer teachers to the GTCE for alleged incompetence. The barriers include the nature of working relationships between teachers, senior managers and headteachers, and the potential impact upon the teacher’s well-being and future career. This reluctance is likely to be transferred to the new context and compounded by the single sanction of prohibition, as would the trend for teachers to resign to evade referral, exacerbating the potential for such teachers to be "recycled".

9. It is unclear whether the proposed changes to existing legislation retain the route for parents, and the wider public, to refer a teacher.

Better Regulation Principles and adjudication

10. It is important that teacher regulation is measured against the Better Regulation principles of independent regulators – regulation should be transparent, proportional, accountable, consistent and targeted. It will be important to scrutinise the arrangements set out in regulations to ensure adjudication meets these principles.

Resigned but not prohibited

11. The Bill makes no provision for the existing compulsory referral of teachers who have been dismissed or have resigned on the point of dismissal for misconduct or incompetence. For a regulatory system to meet the test of the Better Regulation principles it is important for the regulator to evidence transparency across the whole decision – making process, including in this case, those who fall short of prohibition.

Proportionate and remedial

12. A range of proportionate and remedial sanctions [2] should enable those teachers who could safely return to teaching, perhaps in a different setting or after further professional improvement, to do so whilst ensuring those whose conduct or competence made them unsuitable to teach could not. Hearings held in public ensure transparency and fairness to teachers against whom allegations are made, allowing for legal challenge of decisions and public exoneration of teachers where such allegations were not upheld. Any sound regulatory approach should seek to ensure that teaching expertise is not unnecessarily lost to the education service and that uncharacteristic lapses in teachers’ conduct or competence can be redeemed where appropriate.

Induction

13. The list of teachers prohibited from teaching will include those newly qualified teachers (NQTs) who have failed their induction year as well as teachers barred as a result of unacceptable conduct, but not those teachers found to be incompetent. It would be highly regrettable if new teachers who failed induction were to be confused in the public mind or in the media with teachers guilty of the type of serious misconduct or criminal convictions, such as accessing pornography on school computers or possession of an illegal weapon, which have resulted in GTCE prohibition.

Crossing borders

14. The teaching councils in Wales, Scotland and Northern Ireland (N.I.) have expressed concern that teachers prohibited from teaching in England may seek employment in Wales, Scotland and N.I., requiring employers in those countries to check the Secretary of State’s list of barred teachers as well as their respective teaching registers.

Safeguarding

15. The primary purpose of regulating teachers in the public interest is to ensure that children and young people are taught by eligible, qualified teachers of good standing and to protect pupils and their education from the incompetence of poor teachers and the misconduct of those who should not be teaching at all. This is particularly crucial for vulnerable children, including those with special educational needs (SEN).

16. The GTCE has worked closely with the Independent Safeguarding Authority (ISA) because employers have been expected to decide whether to refer a case to the GTCE or the ISA. Where a case has been mis-referred or, on further investigation, it has been found that it is more appropriate for the ISA, it has been redirected to them and vice-versa. It is important that this close liaison will continue in order to provide effective safeguarding of children when the single sanction of the Secretary of State replaces the regulatory function of the GTCE. A continued close relationship with the Association of Chief Police Officers (ACPO) will be crucial to ensure the requirement to report teachers as a notifiable profession is consistently applied.

Diffusion of responsibility

17. The GTCE is concerned that consistent, system-wide norms of professionalism and coherent standards for all teachers should be applied. The diffusion of responsibility for ensuring teachers’ conduct and competence to individual settings could, over time, erode teachers’ sense of belonging to a profession and parents’ and the public’s perception that the principles of teacher professionalism are tenets on which they can depend.

Priorities for accountability

18. Research shows that, for parents, the priority for accountability is the quality of teaching their child receives. There is nervousness among parents about strengthening internal systems of regulation at the cost of a reduced level of external accountability [3] . While teachers would welcome strengthened internal accountability, the quality of existing relationships between staff in a school setting might compromise the robustness of such a system [4] .

Performance Management and Professional Standards

Variability

19. All the provisions of this section of the Bill rely on a more effective performance management regime and a more consistent application of a sound professional standards framework. The provisions of the Bill cannot stand alone; there is, as yet, no detail as to how performance management and the professional standards framework is to be strengthened so as to reduce variability in the quality of teaching between schools.

Teacher Registration

20. The Bill proposes moving from a Register of all those teachers who are entitled to teach in maintained schools, non-maintained special schools and pupil referral units. Instead, a single, publicly accessible, list will be published by the Secretary of State of those who have been prohibited from teaching for conduct that has fallen below an acceptable standard or who failed to prove their competence at the end of the induction period. This change holds potential risks to the public interest.

21. The GTCE Register has been the public’s guarantee that registered teachers are eligible, suitable, properly qualified and of good standing. It has been an important part of the professional accountability framework for teaching because every teacher working in maintained schools, non-maintained special schools and pupil referral units (PRUs) has been required to be registered.

22. The GTCE Register of Qualified Teachers has been the most comprehensive and accurate data set on the teacher workforce and has served the research community as well as the education service:

· 676,000 checks on teachers’ registration were carried out online through the GTCE last year, saving employers significant time and money

· over 568,000 teachers are fully registered with the GTCE

· over 49,000 trainee teachers are provisionally registered

· over 10,000 instructors are registered

· over 54,000 overseas trained teachers are provisionally registered.

23. Without a functioning data set, it would no longer be possible to validate teachers’ entry qualifications or standard of practice qualifications on a profession-wide basis. Employers would need to find this information from other, disparate, sources which may be neither accurate nor up to date.

24. The absence of a database which is constantly updated to capture teachers’ changing employment status, qualifications and professional standing means it would no longer be possible to provide ongoing validation of these elements of teachers’ professionalism. In effect, a teacher would not be required to demonstrate their eligibility to practice beyond their initial teaching qualification. Other occupational and professional sectors are moving to or already require renewable licences to practise. There is an interest to the public in a single comprehensive and accurate dataset on supply and workforce to inform planning and quality professional-led regulation.

The Principles of Teacher Professionalism

25. Teaching in England, in common with medicine, law and teaching in other countries, is a skilled and trusted profession which hitherto has been subject to professionally-led regulation. Teaching, like other professions, is defined by:

· a recognised body of knowledge

· routes of entry

· a set of practice standards

· a commitment to continuing professional learning and improvement

· a shared set of values and behaviours.

26. The proposals in the Bill remove from the profession the responsibility to set, and be accountable for, its professional standards and ethics.

Conclusion

27. The single sanction of prohibition by the Secretary of State for teachers found guilty of unacceptable professional conduct is too crude an instrument and does not address teacher incompetence. Voluntary referral risks promoting rather than reducing variability.

28. The new arrangements for the regulation of teaching are unlikely to fulfil the public interest, since there appears to be no means to provide due account to stakeholders and, thereby, to achieve public and profession-wide confidence.  The failure to maintain a register of all teachers and trainees risks undermining any universal regulation of teachers, including supply teachers.

29. The Bill's proposals risk diminishing public and teachers' confidence in teacher professionalism while falling short of the Government's objective of raising the standards and standing of teaching.

February 2011