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After paragraph 1(3) of Schedule 2 to the Teaching and Higher Education Act 1998 (c. 30) (disciplinary powers of council) there is inserted—
"(3A) No person shall be charged with an offence under sub-paragraph (1) in respect of the disclosure of information or opinions to the Secretary of State, the Office for Standards in Education, a local education authority, an examination board or a local authority or any of their employees or agents.
(3B) It shall be a defence to any charge under sub-paragraph (1) to show that the action or inaction in question was in the public interest.""

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The noble Lord said: This matter arises from the first disciplinary case brought by the General Teaching Council. I shall not refer in any way to the circumstances or personalities in that case. I am concerned with the principle of the charges that were brought. Two of the four charges seemed to me to run directly against the principle that I believed the Government established and that I would applaud: that those who bring wrongdoing or malpractice to the attention of the authorities or in certain circumstances to the attention of the general public should have protection. They are commonly called "whistle blowers". Both the charges brought against the gentleman in this case were of professional misconduct. The first is that he told Ofsted inspectors about something which had been going on in the school and, secondly, he told an examination board about something which was relevant to an examination which it had set.

I know nothing about the person involved. Even if he were the most undesirable, misbehaving and unworthy teacher in the world, telling Ofsted what went on in the school cannot under any circumstances be called professional misconduct. Telling an examination board of something which a teacher believes to be wrong in the way in which an examination was administered, cannot be professional misconduct. It may be all kinds of other things such as wrong-headed, pig-headed or misguided, but teachers have to be allowed to bring their case to the relevant authorities if they feel that that is what they must do. It is entirely wrong that charges of this nature should be brought. This new clause is intended to make sure that the General Teaching Council cannot charge a person with misconduct if what is concerned is bringing a matter to the notice of the proper authorities and that under any other circumstances of being charged with professional misconduct, they have the defence of public interest. I beg to move.

Baroness Blatch: I apologise for not having discussed this amendment with my noble friend. I simply wish to ask a question about it. I believe it is perfectly sensible to table this amendment and I support it.

But there is also the possibility of a vexatious case where an accusation or comment was made to Ofsted or to an examination board which was purely vexatious and could cause great distress to another member of staff. It seemed to me that there should be a test of what was in the public interest. If it was in the public interest, then my noble friend's amendment would apply. If it was not, and turned out to be vexatious, then that could also be dealt with.

Lord Davies of Oldham: I quite understand the concerns of the noble Lord, Lord Lucas, in seeking to amend the Bill and I appreciate the way in which he has presented his amendment. I seek to emphasise to him that I consider the contribution by the noble Baroness, Lady Blatch, absolutely right. We have to take into account the possibility of a vexatious action. Therefore, the issue is whether we have got the balance

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right in terms of the procedures which are followed as regards, on the one hand, as the noble Lord would identify quite accurately, the necessary protection of the whistle-blower who draws to the attention of a public body an activity which is unacceptable and wrong, and, on the other hand, the right of all in the public service not to be slandered because of a vexatious case brought against them which does not stand up against any test, but which is the subject of malice or malevolence.

We are seeking to establish here the question of balance. It is quite right that the careers and reputations of individuals should be protected when they expose wrong-doing or malpractice in the organisation in which they work. The noble Lord has expressed that in an eloquent fashion in his contribution. It was in the interests of protecting such individuals that we brought forward the Public Interest Disclosure Act 1998 which protects employees, including teachers, from detrimental treatment by their employer arising from specified disclosures made in good faith.

However, I am unhappy about an amendment which would constrain the jurisdiction of the General Teaching Council by preventing the employers of teachers bringing forward allegations of unacceptable professional conduct to the GTC where these are based on the disclosure of information and opinions. After all, it would be possible for a teacher to give information and to voice opinions which are not in the public interest but just designed vexatiously to damage the school community.

It is for the General Teaching Council to determine whether the disclosures amount to unacceptable professional conduct in the light of all the circumstances. It is also important to bear in mind that all allegations of unacceptable professional conduct are considered first by an investigating committee of the GTC which can decide whether there is a case to answer. It can throw out a case at this preliminary stage. If the committee decides that there is a case to answer, the matter goes before the Professional Conduct Committee of the GTC. It is this committee's duty to give full and proper consideration to all the available evidence. Where a teacher against whom allegations of unacceptable professional conduct have been made gives the defence that his or her actions were in the public interest, the GTC's disciplinary committee must take account of that defence in reaching its decision. It is not necessary to write into the law that such a defence is permitted.

I also remind noble Lords that a teacher aggrieved by a decision of the GTC's conduct committee has a right of appeal to the High Court. The court may use its discretion to overturn the GTC's decision or to order a re-hearing. Those protections are essential, given that the career, livelihood and reputation of individuals may be at stake. So I share the noble Lord's reasoning behind his amendment and the probing which it has given him the chance to identify. But I hope that he recognises that we must strike a balance between the rights of the whistle blower and the

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protection of institutions against vexatious allegations. It is the General Teaching Council's responsibility to have procedures that ensure that these issues can be identified and dealt with in the appropriate manner. I hope that on the basis of that reply the noble Lord feels able to withdraw his amendment.

Lord Lucas: I seek a little more comfort from the noble Lord. He talks about the whistle blower's Act. Can he assure me that that applies to a teacher in front of the GTC? I thought that it applied to a teacher only in relation to his employer—whoever that might be—and that as to GTC proceedings he was not protected under the Act.

If the GTC disciplinary committee reaches a conclusion and the teacher takes the matter to the High Court, is the defence of public interest a valid defence? Can a court consider that matter or is it prevented under the rules by which it is bound? In other words, if I as a teacher said, "Yes, I did these things, but it was in the public interest", can the court freely consider that matter or not?

Baroness Blatch: Before the Minister replies, can I make it absolutely clear that I believe that there should be a test to prove whether or not the issue is in the public interest, but that if the matter is vexatious it should be dealt with. If it is proven to be in the public interest that should be a defence. That is why I support my noble friend.

Lord Davies of Oldham: I understood the noble Baroness to have expressed exactly that viewpoint. That is the reason why I contrasted her position with that of the noble Lord as to the balance and how the procedures should work.

The noble Lord has asked a legal question of one of the minority non-lawyers in this House. So I should struggle in replying to him immediately. But I shall of course be happy to write to him on those points in good time for him, if necessary, to raise the issue again on Report.

Lord Lucas: I am most grateful to the noble Lord. If he receives any sudden information, I am happy that he should rise again, but on the assumption that he would prefer to write, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 12 [The General Teaching Councils for England and Wales]:

The Deputy Chairman of Committees (Viscount Simon): Before calling Amendment No. 322 in Schedule 12, I would advise the Committee that if it is agreed to, I cannot call Amendment No. 323 because of pre-emption.

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Baroness Sharp of Guildford moved Amendment No. 322:

    Page 164, leave out lines 40 and 41 and insert—

"(1) The Council may undertake activities designed to promote the professional status of teaching."

The noble Baroness said: In moving Amendment No. 322, I shall speak also to Amendment No. 323. The amendments are more or less the same. They are aimed at ensuring that the General Teaching Council fulfils its role for teachers in holding the profession of teachers rather than just a GTC of teachers. They are aimed at promoting and ensuring the positive working relationship of the GTC with the teacher organisations.

From these Benches, we have argued for a long time that such a council was necessary in order to promote teaching as a profession, just as the General Medical Council has been the professional organisation for doctors. It ensures consistency of professional qualifications; it can help to ensure that professional development becomes an entitlement for teachers; and it can help to secure effective support for newly qualified teachers.

Yet at present, by its very composition, the GTC is not a general council for teachers. It is not made up of independently elected and nominated teachers; just under half of the council consists of nominees of the Secretary of State and of non-teaching organisations. Teaching unions, especially the National Union of Teachers, which has lobbied us on the matter, believe that the composition of the council should be amended to provide for teachers to form a majority of members sufficient to guarantee its independence and representative nature and to justify its description as a council for teachers. The amendment is intended to probe the Government's intention in that regard. I beg to move.

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