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Lord Henley: I regret that I am unable to give the noble Baroness the assurances that she seeks. We have already made clear that it is the head teacher who is responsible for determining measures to secure discipline and good behaviour in schools. The head is responsible for enforcing the school's discipline policy on a day-to-day basis. If a pupil fails to attend detention given within the provisions of this clause for a disciplinary offence I believe that it is for the head teacher to determine how the pupil should atone for that non-attendance and the original misbehaviour that led to that detention. Normally, that would call for a more severe sanction. I agree that the disciplinary offence for which the pupil has been given detention may well not be one which in the normal course of events warrants exclusion.
However, what follows detention in a school's hierarchy of sanctions is for the head to determine. There may be circumstances in which the head will give the pupil a fixed term exclusion for failing to attend a detention. Such cases will be relatively rare. During that time efforts could be made to reach an accommodation with the parents about that detention. If that failed and the circumstances were repeated and the pupil and parents continued to defy the head teacher, as a last resort I believe that the head could well be justified in permanently excluding the pupil. But to put on the statute book a provision of the kind suggested by the noble Baroness which provides that in no circumstances can failure by the pupil to attend the detention constitute grounds for exclusion is wrong, in that it limits the options available to the head concerned. I repeat that I expect such circumstances to be very rare indeed, but I believe that this should still be part of the armoury of measures available to the head concerned.
10.45 p.m.
Baroness David: I hope that the Minister did not mean one thing that he said, which I believe I heard correctly, which was that it might lead to permanent exclusion. That would be quite unjustified. As the Minister probably knows, we are not happy with the clause and this after-school detention. I shall read what
he said. I think that he has tried to give us some reassurance. Whether I am happy enough with what we have heard remains to be seen. For the moment, I beg leave to withdraw the amendment.Amendment, by leave, withdrawn.
Baroness Young moved Amendment No. 106:
Before Clause 23, insert the following new clause--
(" .--(1) Schedule 15 to the Education Act 1996 (reinstatement of pupils excluded from county, voluntary or maintained special schools) shall be amended as follows--
(2) After paragraph 2 there shall be inserted--
"2A. In deciding whether the pupil in question should be reinstated, the authority shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".
(3) After paragraph 3 there shall be inserted--
"3A. In deciding whether to direct reinstatement of the pupil in question, the governing body shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".
(4) After paragraph 5 there shall be inserted--
"5A. In deciding whether to direct reinstatement of the pupil in question, the authority or governing body shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".
(5) After paragraph 9 there shall be inserted--
"9A. In deciding whether the pupil in question should be reinstated, the governing body shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".
(6) After paragraph 11 there shall be inserted--
"11A. In deciding whether to direct the reinstatement of the pupil in question, the authority or the governing body shall have regard both to the interests of that pupil and to the interests of other pupils at the school and members of its staff.".").
The noble Baroness said: The amendment would require at each decisive stage of the appeals process relating to exclusions that the interests of other pupils and the staff of the school are considered in addition to those of the pupil being excluded. It is a straightforward point. The amendment makes that clear.
The Bill rightly introduces a requirement that, in considering reinstatement of an excluded pupil on appeal, an appeal committee must have regard not just to the interests of the pupil concerned but the interests of other pupils in the school and members of the staff. Rather than merely introduce that requirement at the final stage of an exclusion process, it seems sensible, not least in order to establish consistent criteria against which a decision to exclude can be properly judged, that the same obligation be required throughout all the appeal stages.
There is no reason why, if it is accepted that considerations relating to other pupils and staff are valid in deciding whether to uphold the head teacher's decision to exclude at the final appeal, their validity should not also be made clear at the earlier appeal proceedings. It is obvious why this matter is considered, because clearly when one is considering discipline matters one needs to consider the effect on all the pupils, not just the one who is being disciplined.
My understanding is that in Committee in another place an undertaking was given that the new guidance that the department of my noble friend the Minister is to put out on exclusions would reflect the effect of the amendment. Such an assurance is of course welcome, but it has been put to me that in the light of the Government's proposals to require an appeal committee to consider the interests of staff and other pupils during its deliberations, it is sensible for the above reasons to reflect that throughout all appeal stages and to put it in primary legislation. I beg to move.
Lord Elton: In support of my noble friend I would just say two things. First, we have a spate of reports of schools most reluctantly being forced to receive pupils they do not want to contain. Without knowing the facts of the cases, one can do little more than guess. There is a suspicion in my mind that on some occasions those hearing an appeal have very much considered the case of the individual child and not the effect of the return of that child on the upwards of 20 children in the class in which he or she will be taught.
Secondly, we live in an increasingly litigious age. I hope that the reassurance that is given to my noble friend that the matter rests on guidance or circulars will be lawyer-proof; in other words, that appeal bodies can be confident that if they are taken to court for not upholding an appeal--I believe that that is justiciable--they will be protected in the court from that suit by whatever guidance or other measure my noble friend has in mind.
Lord Henley: I have considerable sympathy for the idea behind my noble friend's new clause, though not in terms of putting it into primary legislation. What it seeks to do is to replicate provisions in Clauses 24 and 25 relating to the independent exclusion appeal committees and to require those committees to consider the interests of other pupils and members of staff at the school as well as the interests of the excluded pupil when considering reinstatement. That is an important point. We do not want, as it were, one rotten apple corrupting the rest of the barrel.
However, I do not consider that we need to prescribe this in primary legislation. As it stands, Schedule 15 to the 1996 Act does not go into this kind of detail on arrangements for LEAs and governing bodies when considering reinstatement of pupils at the first stages of the exclusion appeal procedures; nor was it intended to do so. LEAs and governing bodies are closer to the life of the school than independent appeal committees and are quite naturally going to take account of the wider interests of the school in considering reinstatement.
The present provisions in Schedule 15 allow significant flexibility at local level in the handling of procedures for hearing parents' representations. That seems right, given the variation in local circumstances, and I would not want to start laying down detailed procedures in statute for those first stages of the appeal arrangements.
However, I take the point that it is important to ensure that the wider interests of the school are never overlooked when reinstatement is being considered, and we shall ensure that the new guidance which the department will be producing on exclusions will give added emphasis to this point. I will also ask my officials to look at the new guidance and other matters in terms of what my noble friend Lord Elton described as "ensuring that they are lawyer-proof". Most of us would recognise that as being difficult to achieve, but no doubt they can give thought to it. I hope that with those assurances my noble friend will feel able to withdraw her new clause.
Baroness Young: I thank my noble friend for that reply. I am sure that he has taken on board the point, but I did not follow the argument that one should not go into such detail at the first stages of an appeals procedure. The difficulty of one child coming back into the class and disrupting everybody else is just as serious at the beginning as at the end. In fact, for teachers and head teachers in particular, weighing up the balance between the difficulty with one ill-disciplined child and the effect of that on the rest of the class is tricky. I believe that they require a great deal of support in discipline matters.
However, it is late and this is not a matter which I should think of pressing to a Division. I shall look closely at what my noble friend has said and I hope that he will bear closely in mind what was said by my noble friend Lord Elton. One of the ways that teachers can be helped is to strengthen the law and to prevent the possibility of litigation when they believe that they are acting perfectly reasonably in trying to enforce discipline in schools, which is essential for the good learning of the children and very much desired by the parents. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Variation of limit on fixed-period exclusions: all maintained schools]:
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