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The noble Baroness said: My Lords, we move to the issue of physical restraint of pupils. In our debate on 25 July, the Minister said that school staff already had a statutory power to use reasonable force. He pointed out:

What about the Minister’s inclusion agenda? The Government say that every teacher is a teacher of children with special needs, and it is those children who are disproportionately affected by this problem and whose needs must be seriously taken into account, if there is to be any kind of physical intervention without damage. The Advisory Centre for Education, the National Autistic Society and the charity TreeHouse all have significant concerns about the broad powers given to the schools’ workforce to use force and the likely disproportionate impact on disabled children and those with special educational needs such as autism, whose behaviour can often be extreme and very difficult to deal with, unless all those members of staff have training in intervention in an appropriate way and in de-escalation strategies.

The Steer report, about which we have heard much, deliberately set aside consideration of children with special educational needs, yet they make up 90 per cent of those at primary school and 60 per cent of those at secondary school who are excluded from school and with whom those situations might arise. In debates in another place the Schools Minister, Jim Knight, was most helpful in clarifying that when,

The Minister is entirely correct in saying that there is non-statutory guidance on the use of force. Schools already have guidance on the use of restrictive physical interventions for staff working with children and adults who display extreme behaviour in association with a learning disability and/or autistic spectrum disorder, and separate guidance on the use of restrictive physical intervention for pupils with severe behavioural difficulties. The problem is that those two sets of guidance are neither statutory nor well known in mainstream schools. As anybody with any knowledge of working with children with autism will know, it is imperative that mainstream schools also receive such guidance, especially on avoidance and de-escalation of problems.

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Special schools have developed great expertise over the past few years in dealing with such issues, and we would hope that their expertise can be spread throughout the mainstream school community through dissemination of best practice. We warmly welcome the Minister’s pledge to update the guidance, but could he clarify how it will be distributed to schools, whether it will be made statutory and how the DfES will ensure that all schools will act in accordance with it? For example, will Ofsted monitor its use? We believe that unless this clause requires statutory guidance, uneven professional practice will result, with consequent risks to children and the staff involved. The Minister said at Second Reading that,

That is exactly what our amendment seeks to do. The need for this will become increasingly pressing as more children with complex behavioural and communication difficulties, such as autism, are included in mainstream schools. They will gain many advantages from that, but only if they are properly resourced and the staff are properly trained to meet their particular needs, not least in a situation where physical restraint might be required.

Jim Knight suggested in Committee in another place that he did not see SEN behaviour and physical handling as a mainstream issue and maintained that it was only so in,

But, as I said, his comments seem at odds with the Government’s excellent 10-year strategy for children with special needs, Removing barriers to achievement, which states:

If all teachers need to teach children with special needs, then all teachers need the appropriate training. If they have the power to use physical restraint where appropriate, they need to know how to use it properly and in a way that does not endanger the child, themselves or any other child. A thorough consultation process leading to statutory guidance aimed at all school staff would be the most appropriate step. As any teacher

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might at any time have children with special needs in their class, all teachers should receive the appropriate training. No teacher takes physical restraint of a child lightly. It is a very difficult and sensitive area and teachers are very reluctant to do it because of the danger of misinterpretation of their behaviour. I am sure that most teachers will apply it only when it is absolutely necessary to secure the safety of the child and other children in the class. However, we have a duty to ensure that teachers are properly prepared for that responsibility by ensuring that they are all properly trained. I beg to move.

Lord Adonis: My Lords, Clause 90 re-enacts provisions that became law in 1998. As I said in Committee, we are not aware that they have caused difficulties over the past eight years and therefore we did not regard this as a controversial part of the Bill.

However, we fully accept that the use of force is a sensitive issue, so from the outset the legislation has been supported by detailed, practical guidance. As I have already indicated, we will review and re-issue this guidance. It will be made available on Teachernet, which is our usual way of communicating with schools. That should ensure wide dissemination.

Ofsted keeps all these issues under review, but I shall need to come back to the noble Baroness on the context in which it might carry out specific monitoring of this matter. I was looking for inspiration from the Box, which, alas, I have not received, but I do not believe that the guidance is statutory. I shall confirm that with the noble Baroness later. Our view, therefore, is that the first subsection of this amendment is unnecessary. There is no need to require my department to issue guidance because we are already fully committed to doing so. Enhanced guidance will be available to all schools when Clause 90 comes into force. I can also promise that it will cover issues highlighted in this and previous debates, including special educational needs and staff training.

The second subsection of the amendment boils down to imposing a requirement on every school to provide specific training for every member of staff who supervises pupils. We continue to believe that this would be disproportionate. Guidance will make clear that decisions about training should be based on risk assessments carried out by individual schools. Those should focus on the likely frequency and seriousness of incidents requiring the use of force. There may well be schools where the head teacher concludes that the risk is such as to justify training of all staff with supervisory responsibilities, but it is more sensible to let heads make decisions based on the needs of particular schools rather than seeking to impose a uniform regime from the centre. I hope that, with that assurance, the noble Baroness will not feel the need to press the amendment.

Baroness Walmsley: My Lords, I thank the Minister for his response. I will not press the amendment at this stage, but I am not totally happy with what he said. Guidance on a website is all very well, but it is also all very theoretical. It is not really a substitute for the sort of training where teachers can discuss the issues and share their experiences, best

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practice, techniques for de-escalation and so on. If you are going to put a teacher in a situation where something dangerous might arise, you really must make sure that they are properly trained to address it, even if it is not very likely.

I used to be a science teacher, as noble Lords will know, and I would have hated to go into the laboratory without having been trained in how to respond if a child behaved dangerously with a piece of scientific equipment, or if a child had a fit in an environment where there was equipment with which they could hurt themselves. I am pleased to say such a situation never arose, but I would not have felt confident to go into a laboratory without such training.

The more we are successful in including children with severe difficulties in the mainstream—with all the benefits that can provide for certain children—the more we need to be aware that such difficult situations can arise and that all teachers have a right to receive proper training. Although I accept what the Minister said in good faith, I am not quite sure that it is enough. My noble friend and I will consult TreeHouse and the National Autistic Society, and we will consider whether we might want to bring this back at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 124 had been withdrawn from the Marshalled List.]

Baroness Buscombe moved Amendment No. 124A:

(a) necessary to prevent a person committing an offence or fleeing after having done so, or (b) necessary to ensure the effective conduct of a criminal investigation.

The noble Baroness said: In speaking to Amendment No. 124A, I ask myself, as I have done again and again during our debates: who on earth would be a teacher? We return to this much debated and, to my mind, hugely important amendment. It will enable teachers to retain their anonymity where they have been accused of committing a criminal offence by a pupil in class. Out of 2,016 cases investigated between 1995 and 2002, only 4 per cent of all allegations against teachers have resulted in a conviction.



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We live in a low-risk culture, where we believe that risks are so great that they should not be taken. That is right; we should never risk our children’s welfare. But neither should we therefore risk the trust of our teachers. Male teachers are dissuaded from the profession, which is hardly surprising as 70 per cent of all allegations are made against male teachers.

Following the last stage of the Bill, my colleagues and I met the Minister from another place to discuss the implications of the amendment. I am very grateful to the Minister, Jim Knight, for that opportunity. Having considered the representations of the Minister, Members on other Benches and the NSPCC, we have revised our amendment so that it will strike the most effective mechanism for protecting teachers from allegations that ruin careers and lives, which leaves enough flexibility to carry out effective police investigations.

We have considered the amendment extremely carefully over the past few months. There are some crucial differences. The new version of the amendment provides for the order to be approved by resolution of each House of Parliament, ensuring parliamentary scrutiny. It applies only to charges for criminal offences, not internal disciplinary matters. The amendment includes a power to include exemptions where necessary—that is, where the accused is in danger of committing further offences or fleeing after having done so and where the police need to identify the accused during their investigations, for example when seeking witnesses.

I believe that we have addressed the main concerns of the NSPCC. The Secretary of State’s powers under the amendment are completely different from the arrangements that surrounded List 99. The Secretary of State’s involvement in regulations made under the amendment extends to the guidance that the Minister has already introduced. The Secretary of State could not make a judgment on individual cases, as with List 99; rather, he or she would have a power to introduce a general framework for anonymity. Specific exemption could be brought by those with expertise or local knowledge, such as police or social workers.

We recognise the need to leave schools and police forces the absolute independence to deal with allegations as they, in their professional expertise, see fit; but anonymity will protect the future of thousands who face unfair allegations and the crippling effect of ever-increasing trial by media.

The NSPCC has expressed concerns that the amendment would create a two-tier system under which teachers and school staff were afforded anonymity until they were charged, but not those who work with children in other areas. My response is: just because the amendment does not afford anonymity to all who work with children does not mean that we should do nothing.

We would welcome measures that protected all people who work with children from the tragic effects of false allegations and the destruction of reputation, but I must make one point absolutely clear. Teachers work with children in classrooms. Their relationship with children is entirely different from that of a carer or someone in another position outside school. There

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are points to be scored from teachers in school. I am sure that noble Lords will remember that from their own school days.

We are not considering the entire social service but teachers and workers in schools. We have worked incredibly hard to provide what we believe will protect teachers and children from the intrusive effects of publicity in the uncertain stages of a criminal allegation, and will lessen the risk to teachers of false allegations by taking away the incentive to make them.

We hope that these measures will treat serious and tragic situations with the seriousness and privacy that they deserve where those allegations are founded. I beg to move.

Lord Sutherland of Houndwood: My Lords, I support the amendment. We have made teachers’ lives difficult, for good reason in almost all cases. On the other hand, teachers have a hard task to perform and, in the classroom, additional vulnerability, not least to this kind of allegation, should not be imposed. Affording the degree of anonymity proposed in the amendment is only just, because one is innocent until proved guilty; it is also just in terms of the continuity of that teacher’s role in the school after the allegation has been thoroughly investigated. Finally, in its current form, the amendment provides for the right protection of children if there is a perceived risk due to the character of the offence committed by the individual.

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Baroness Walmsley: My Lords, I have enormous sympathy with the principle behind the amendment and I agree with what the noble Baroness, Lady Buscombe, said about the right of teachers not to be vilified unjustifiably. I also agree with what the noble Lord, Lord Sutherland of Houndwood, said on that.

These sorts of allegations, if unjustified, can ruin a teacher’s life and his or her career—and the lives of his or her family. There is absolutely no justification for spreading unsupported allegations across the media. I should like the media to be somewhat more responsible in the way that they act in those circumstances. However, with a free press, this is a very difficult matter. I recall our discussions in this House in 2003 on the then Sexual Offences Bill. We had a very thorough canter round the course on this issue with a different team. At the time, I was in the home affairs team but I recall it very well. We concluded that we could not legislate to fetter the rights of the free press; ultimately, it had to be left to them to do it themselves in the public interest. I think that some of them do it very well and that some of them do not.

Having said that, I think that there are some problems with the amendment, although I give enormous credit to the noble Baroness, Lady Buscombe. She has tried to bend over backwards to satisfy the concerns of all and sundry on this matter. But there are still some problems. I gather that the amendment would affect academies. But of course the Secretary of State has an interest in academies and it is of the Secretary of State that one would ask

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permission for an exemption. That would be difficult because the Secretary of State would then have an interest in the case.

We on these Benches believe that, if an exemption is to be given, it should be given by the court on the application of the police. We do not believe that it should be given by a Minister on the advice of civil servants. I am sure that noble Lords will be able to recall the difficulties that we had only a few months ago when there was a lot of publicity about certain people working in schools. Ministers had made decisions about that based on the advice of civil servants—all in good faith, I am sure. But, as a result, we now have the Safeguarding Vulnerable Groups Bill, in which both Houses of Parliament have decided that it is more appropriate for such decisions to be made by an independent board of experts. I think that that should also happen in these cases. I do not think that it should go to the Secretary of State.

The noble Baroness, Lady Buscombe, said that accepting her amendment would be better than doing nothing. But the fact is that the Government have not done nothing. I, too, am grateful to the Minister, Jim Knight, for inviting me to the meeting at which we talked about what the Government are doing. A number of new practices now in place are designed to ensure that cases are thoroughly investigated as quickly as possible with appropriate inquiries of other adults about whether there is any corroboration of the child’s story. Rightly, one concern of the NSPCC is that only a very small proportion of all allegations is proved simply on the basis of children’s evidence. There is a better chance of genuine complaints being proved where there is some corroboration from adults. Therefore, it is important that appropriate and sensitive inquiries can be made.

I found it significant that in the run-up to today’s debate we had objections from what one might consider to be both sides of the spectrum. The NSPCC came from the point of view of the protection of children and did not want to fetter any appropriate inquiries that might lead to the proving of genuine allegations. On the other hand, the NUT was very concerned about what is meant by anonymity and how far it goes. Are we talking about asking other members of staff at the school whether they can corroborate the child’s story? Are we going to the child’s parents or to a medical practitioner and right through the spectrum to the press? Of course, no one wants that. When both sides of the spectrum find difficulties with an amendment, you have to ask yourself whether it is the right one.

The noble Baroness, Lady Buscombe, said that her proposals represent the most effective mechanisms. I believe that the most effective mechanisms are prevention and training for staff on what is appropriate behaviour with children. Staff need to know how they might inadvertently open themselves up to allegations; how they can protect themselves from that; how to create a culture of child protection within a school with everyone trained in what to look out for when a child has been abused; and, if a child is upset, how to notice what the problem is and to listen to the child effectively. I believe that those are the

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most effective mechanisms in preventing unwarranted allegations against teachers, which none of us wants to see. If allegations are made, we do not want to see teachers vilified any more widely than is appropriate for a proper investigation of the issue.

I would like the new measures that the Government have put in place to speed up inquiries. I would also like a proper opportunity to evaluate whether those measures are working before we put in place a piece of legislation such as the noble Baroness, Lady Buscombe, is so conscientiously putting before us tonight. It is right that we should have time to see whether the new measures are working well and then return to all the experts and say, “Right, do you think that in any way any child’s safety has been prejudiced by this set of measures? Do we need to go further?.” If they believe that we need to go further I, for one, would be very anxious to do so. If, on the other hand, many teachers feel that they have been vilified more widely than is necessary for a very narrow investigation of the issues, we also need to look again at that.

As we have some problems with this amendment and as we have some new measures in place for which we need time to see whether they work, we shall not be supporting the amendment, although I repeat that we absolutely support the principle of anonymity, as far as is compatible with ensuring child safety, because the interests of the child are absolutely paramount.

Baroness Howe of Idlicote: My Lords, I listened with interest to the noble Baroness, Lady Walmsley. She has raised some important issues. It is important that all teachers are given basic training on what is appropriate behaviour. However, we need to take note of the fact that only 4 per cent of allegations are actually proved. That does not mean to say that more than 4 per cent or less than 4 per cent is the right number, but it is worrying that, increasingly, teachers can be put out on a limb, cases can take a very long time to prove and so on.

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