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Amendments Nos. 222B, 222C and 222D are all about who can impose penalties and why and ensure that they are for the well-being of the child. Amendment No. 222B ensures that the decision to impose a penalty on a pupil can be made only by a head teacher or a member of staff authorised bythe head teacher. We believe that it should be down to the head teacher or someone to whom he delegates that power to decide to impose penalties. The current wording is rather vague. It seems to say that any member of staff can impose a penalty unless the head teacher says that they cannot. We would like to put it the other way round.

Amendments Nos. 222C and 222D together will add to the matters that must be taken into account when determining whether the penalty is reasonable. They ensure that the penalty must contribute to the well-being of the child in order to be considered to be reasonable. I refer the Committee to the speechmade by the noble Baroness, Lady Thornton, on Amendments Nos. 216 and 219. She nicely gave me some good examples of where punishments were not reasonable because they did not contribute to the well-being of the child. Also, they were not effective; in fact, they turned the child in completely the wrong direction. One might believe that any penalty that is not effective is not in the interests of the well-beingof the child, because it will not help the child to address the unacceptable bad behaviour. Therefore, thoughtful and effective penalties that are also reasonable are, by definition, in the interests of the child. That element of well-being should be considered when considering how reasonable disciplinary penalties are.

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Amendment No. 237A is about the burden of proof in cases of confiscation. That is a sensitive and difficult area of discipline. Proposed new subsection (1) deals with the need for an individual to prove that the confiscation was lawful, as in the Bill. The amendment was proposed to us by the NUT, because it is very concerned about this part of the Bill. It believes that the requirement for an individual teacher to prove that the confiscation was lawful is contrary to the normal principle of the criminal justice system and, more particularly, to Articles 6 and 7 of the Human Rights Act 1998. In reality, unlawful seizure,

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as well as the inappropriate behaviour of the teacher, could be considered a criminal offence, so the teacher should not have to prove their innocence. The burden should be on another to prove their guilt.

I remind your Lordships that Article 6 on the right to a fair trial says:

Article 7 is entitled, “No punishment without law”. It seems very odd that the Government should have introduced the element of confiscation to the effect that the person has to prove that confiscating the article was lawful.

Proposed new subsection (2) deals with the reasonable disposal of the confiscated property and would provide that it would be lawful to dispose of the property if it could not reasonably be returned to its lawful owner—for example, if it was stolen or if the property was a weapon or some drugs and returning it to the pupil, parent or guardian was illegal—or where it might precipitate the need for further punishment, such as handing back cans of spray paint when the pupil has been punished for graffiti. That, of course, is simply asking for trouble, is it not?

The NUT is concerned that teachers could be open to challenge without specific criteria that set out when and why property could be disposed of. It would also be unfair not to return a pupil’s property, such as an iPod or a mobile phone, which might be quite valuable, without proper reason for keeping it. The NUT is therefore concerned that this would otherwise be incompatible with Section 1 of the Human Rights Act, which gives the child the right to its own property. There needs to be a presumption that an item that has been confiscated because its use in class is disruptive would be returned to the pupil afterthe class or perhaps to the pupil’s parents at an opportune moment, and that there would be no right to dispose of property of that sort.

The key issue is the burden of proof. When this subject was discussed in another place, the Minister failed to provide a satisfactory answer. He said:

I put it to the Committee that that is a tautological argument. The “innocent until proved guilty” principle is not about legalisation, which makes someone guilty; it is about someone not having to prove their innocence of an offence defined by law. The Minister Jim Knight’s statement that the clause makes someone innocent if he can show that his actions are lawful is just another way of saying exactly what we are concerned about. By the way, the Joint Committee on Human Rights raised exactlythe same concern in its latest legislative scrutiny on the Bill. The measure seems to run completely counter to the normal principles of criminal justice, and I wonder whether the Minister can explain why it is necessary. I beg to move.



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Baroness Buscombe: I shall speak to Amendments Nos. 222, 246 and 239 in the group. First, I have never understood why pupils have been allowed for some years now to leave the school premises in the lunch break, which is what Amendment No. 222 is about. It is not intended to restrict children’s movements for any arbitrary reason. Indeed, its primary purpose is not even to ensure that children stay in school to eat good school meals as an addition to the great progress that has been made in recent months on the awareness of the need for good nutrition for children. We believe that it would contribute to the safeguarding of children while at school, to a strengthening of the work ethos and to a stronger sense of the school as a community if the children were to remain there during the school day.

I stress that this is very much an enabling amendment. I note from my experience all those years ago and from more recent experience as a school governor that children leaving the school premises during the lunch break are much more likely to become disruptive, because their day in the school environment has been broken and they are much more likely to find it more difficult to settle back into the afternoon if they are allowed to leave the school premises and have no discipline and no cover during that break.

The amendment would give head teachers a vital legal entitlement to restrict the hours when children can leave school during the day. That statutory weight would be required where a head teacher comes under pressure not only from pupils but from parents for such a decision. We must remember, however, that it is the responsibility of a head teacher to ensure the safety of children during all school hours. Currently, teachers are forced to spend a large amount of their time filling out risk assessment forms. Notably, schools already have to fill out a risk assessment form on the safety of the school playground and on the likelihood of abduction and street crime. It seems only sensible that head teachers should be given the legal capability to put measures in place to combat that risk. We are talking not only about the risk of crime from external sources but from children finding themselves on the conveyor belt to crime if they can leave the school premises and, in some circumstances, misbehave during the day. The regulatory impact assessment states that the new disciplinary measures,

I therefore hope that the Minister will be able to accept our amendment and, in so doing, make another symbolic statement in favour of safeguarding children in our schools.

Amendment No. 246 is a probing amendment in that it would allow children who have been excluded and who are not allowed to leave their home during the day some way of leaving their home for the same period as a lunch break while they are excluded. As I say, the amendment is purely probing. We want to ask the Minister what the current arrangements are for ensuring that excluded children are supported by their schools during exclusion, and what measures exist to ensure that those children act within statutory obligations during that exclusion.



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Amendment No. 239 is another probing amendment intended to clarify who exactly will be able to implement a school’s discipline policy. The Bill enables teachers to designate a prefect as a “member of staff” with regard to discipline policy. If the Government intend to allow prefects to implement the body of governors’ disciplinary provisions, that should be clear in the Bill. We on these Benches are not opposed to the idea that prefects should be given more responsibility than other pupils in the school, but we would object strongly to wording that allowed prefects to help with discipline as if masquerading as members of staff. We do not quite understand the meaning of this part of the Bill.

Will the Minister explain the precise framework for the disciplinary policy in the Bill and the exact legal status of “lawful control” used in the Bill to describe the nature of the responsibility of the disciplinarian for the pupil? Can a prefect or any volunteer have lawful control? The regulatory impact assessment states that head teachers will be able to,

I hope the Minister can inform me whether this loose definition would mean that parents on school trips and other volunteers will be defined as members of staff where it is convenient for teachers. If it would, I hope the Minister can tell the Committee what implications there will be for the need to carry out CRB checks and so on.

If a parent were to be assigned as a member of staff for discipline purposes, presumably the school, as a regulated activity provider under the provisions of the Safeguarding Vulnerable Groups Bill, would have to carry out a CRB check on that person. I have to make it clear that we are not against that in principle. It is a very good idea. I have had experience as a parent on school trips, which I found extremely difficult. I was not there, in a sense, as a parent—my children would be too embarrassed to think of me being there as their parent—nor was I given the power to discipline the children. So parents are there, but they are unable to act. In principle, we are very much in favour of what we think the Government are trying to achieve.

Using the misnomer as a definition, or making “member of staff” the only possible legal definition, will generate huge problems for schools. Albeit that we are not against the system of prefects, in using that terminology, conflicts may arise if students are given a different legal status from their classmates. I hope that the Minister will provide clarity on this and my previous points.

Lord Adonis: The noble Baroness, Lady Buscombe, rightly said that it may be good practice for schools to forbid pupils to leave during lunch hours or breaks. Many schools do that already and it is often regarded as good practice. The Bill gives head teachers the power to impose such restrictions. It is clear that these powers are covered by Clause 82. We do not want to specify lunch hours and other breaks in particular because, if we specified one area, the question would arise about why the Bill did not list all the measures that a head could determine, such as wearing school

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uniform and not running in corridors. One could give an exhaustive list of behaviour which it might be thought appropriate to put in the Bill. We acceptthat the restriction the noble Baroness talked aboutis important, and it is emphatically covered byClause 82.

On Amendment No. 246, we should stress that Clause 96 does not prevent excluded pupils from having a break during the day. But we want to ensure that it prevents such breaks being taken in a public place, subject always to the defence of reasonable justification. We want to ensure that parents, or those who are responsible for the welfare of children, take proper responsibility for them in the first five days of an exclusion and that they are not simply roaming the streets in an unacceptable way.

However, the noble Baroness’s amendment has caused my lawyers a slight flurry—if I may put it that way. Clause 96(3) states:

The lawyers are not quite clear whether the definition of school hours in subsection (3) would include lunch time, if for example a school’s normal policy was to allow pupils to be in a public place during lunch time. There is much confabulation going on among the lawyers. I may need to bring forward an amendment on Report, but I am not clear about that now.

Amendment No. 239 probes the issue of school prefects and pupils with responsibility in a school. We are clear that pupils should not have those disciplinary powers under the meaning of the Bill. We took advice on the role of prefects from our stakeholder group on behaviour and attendance, on which all the professional associations were represented. Their conclusion, and ours, was that it would be wrong to give such statutory powers to pupils. That said, this amendment is unnecessary because only members of staff can impose disciplinary penalties under the Bill. It is clear that throughout Chapter 1 of Part 7 the word “pupil” is used in contrast to “member of staff”. It is therefore very unlikely that any court would interpret the legislation in a way that made a pupil a member of staff. For further clarification, I say that firmly on the record. To reinforce that, we also intend our guidance on behaviour policies to make clear that head teachers cannot authorise pupils to impose sanctions.

Turning to Amendment No. 221, tabled by the noble Baroness, Lady Walmsley, Clause 82(5) enables a head to regulate the behaviour of pupils when they are out of school and not supervised by school staff, but, crucially, only to such an extent as is reasonable. We believe that the test of reasonableness, which was supported by the stakeholder group on behaviour and attendance, is adequate to govern this provision. Her amendment seeks to specify particular circumstances where this might be appropriate. We obviously agree with the two that she specified—journeys to and from school, and work placements—but we believe that these are clearly encompassed by the clause. Specifying some rather than other out-of-school contexts in which it would be desirable for head teachers to seek to regulate might imply that other

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circumstances are not so reasonable to monitor. Although we accept the two cases that the noble Baroness raised, we do not believe that it is right to specify particular circumstances. To assist heads in drawing up their behaviour policies, we will provide guidance, which will encompass examples of what might be considered reasonable. It will include the two examples that the noble Baroness raised but we do not wish, for the reasons that I have given, to specify that in the Bill.

Amendment No. 222B seeks to restrict the power to impose disciplinary penalties to staff who have been specifically authorised to exercise that power by the head teacher. That is appropriate for parent volunteers and other unpaid staff for the reasons that the noble Baroness, Lady Buscombe, gave. Clause 84(4)(b) provides for that. There are separate arrangements in respect of CRB checks, which we debated at length in the Safeguarding Vulnerable Groups Bill that regulates the circumstances in which checks need to be undertaken. The noble Baronesses will remember the lengthy discussions that we had about the definition of the word “frequent” in respect of frequent supervision of pupils, which governs that point.

We do not believe that it is right for paid staff to be subject to restrictions on their power to impose discipline, which Amendment No. 222B would allow. Every paid member of staff whose job involves supervising pupils needs the power to discipline them. The power to discipline is meaningless without the power to impose disciplinary penalties. Every paid member of staff whose job involves supervising pupils should get this power by virtue of their job. Of course, they are expected to be properly trained and supervised in their performance of that job. Clause 84 provides for that.

On Amendments Nos. 222C and 222D, we obviously agree with the sentiment that the enforcement of penalties should promote the well-being of children, but the amendment does not seem desirable. Schools have a well established duty of care towards their pupils, which means taking the same kind of care as a reasonably prudent parent would provide. A reasonably prudent parent would of course protect a child’s well-being. Surely, the key point is that all disciplinary penalties—from the mildest through to permanent exclusion—have to strike a balance between the interests of the individual child and those of the school community as a whole. Of course, penalties should signal to the individual child that a particular behaviour is unacceptable. We hope that he or she will learn from that. Penalties should also protect the rest of the school community by deterring children from repeating such behaviour and signal to other pupils that the behaviour is unacceptable. This means that it is not always possible to argue that a particular penalty promotes the well-being of the pupil on whom it is imposed. For that reason, we do not think that it is sensible to add the additional requirement proposed.

As the noble Baroness, Lady Walmsley, said, Amendment No. 237A, which was moved at the

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instigation of the National Union of Teachers, seeks to provide that all confiscations are lawful unless proved otherwise. My honourable friend Jim Knight wrote at length to the noble Baroness’s colleague Sarah Teather with substantial chapter and verse on the legal position and why we have adopted the position that we have in the Bill. I could read out the whole letter or send it to her to ensure effective co-operation between her Front Bench and the Front Bench in the other place. If she has any queries on it, I would be more than happy to respond to them directly. We believe that the power we are taking is reasonable and meets the human rights concerns that she raised. Having read the letter carefully before this debate, I was wholly persuaded by it. On that basis, I hope that I can conclude.

Baroness Walmsley: I thank the Minister for his offer, but I do not think that I will take him up on it. On Amendment No. 221, I have a question about how the phrase that the penalty would be only to the extent that it is reasonable would be interpreted. As the Minister said, although the guidance will have examples, how would it be tested if someone thought that one of the penalties was unreasonable? Perhaps the noble Lord would like to write.

Lord Adonis: The issue of reasonableness is tested by the courts all the time. As I understand it, it is what a reasonable person would think was a reasonable action in the light of all the circumstances. However, I am sure there is a much longer legal definition which could be provided for the noble Baroness.

Baroness Walmsley: I thank the noble Lord. I presume, then, that this would be dealt with through the normal procedures of the courts.

Turning to Amendment No. 222B, while I understand the Minister’s point about what the head teacher would do in relation to parent volunteers and certainly I agree that every paid member of staff should have the power to impose discipline, I still think that the Government have this the wrong way around. The direction should come from the head teacher, who is in a position to decide whether someone should or should not have a particular power of discipline. However, I shall read carefully in Hansard what the Minister has said.

On Amendments Nos. 222C and 222D concerning well-being, the Minister suggested that this is already covered by schools’ duty of care and that a balance must be struck between the well-being of the child and protecting the rest of the school from the indiscipline of a particular pupil whose behaviour may affect the educational opportunities of other children. While I have a great deal of sympathy with that, it is important to make it quite clear that no penalty should be imposed on any child that would actually damage his or her well-being. I suggest that anything which would be effective and teach the child the error of his or her ways would be for their benefit, and therefore no reasonable penalty would be outside the interests of the child’s well-being. Given that, I do

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not wholly understand the Minister’s difficulty about being specific here and stating that punishments should contribute to the well-being of the child. Again, however, I will look carefully at what he has said. Having looked at the letter he referred to, it still strikes me as tautological, so I think that we shall have to agree to disagree about it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos 222 and 222ZA not moved.]

Clause 82 agreed to.

Clause 83 agreed to.

Baroness Thornton: moved Amendment No. 222A:

“(a) the sufficiency and effectiveness of the reasonable adjustments being made for him if he is a disabled pupil, and(b) the special educational provision being made for him if he is a pupil with special educational needs.”

The noble Baroness said: I shall be brief in moving Amendment No. 222A because I am joined on this amendment by the much greater experience and wisdom of the noble Lord, Lord Rix, and the noble Baroness, Lady Darcy de Knayth. The purpose of the amendment is to ensure that a disabled pupil or one with special educational needs has a review before he is permanently excluded from school. As we noted in an earlier debate, the figures are stark: the Pupil Level Annual School Census data for 2003-04 show that two-thirds of exclusions are of pupils with SEN.That is clearly unacceptable. Exclusions affect disproportionately those pupils whose special educational needs impact on their behaviour, which means that these are precisely the children who need to be kept in school in order to benefit from education and support. Further figures from the National Autistic Society are of deep concern to the Special Education Consortium and should likewise be of concern to us. They indicate that around 27 per cent of autistic children have been excluded from school at least once, with 23 per cent more than once.

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