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Many noble Lords have already said that it poses all sorts of technical and other problems. I noted that, in her opening on the previous group of amendments, the noble Baroness, Lady Hughes, expressed some concern about the whole position and about the whole of Clause 13. The noble Lord, Lord Knight of Weymouth, was clearly concerned. My noble friend Lord Black and the noble Baroness, Lady Howarth, were among a number of noble Lords who directly challenged the need for Clause 13 and several others who have hinted at it. So I hope that noble Lords will bear with me if I plod, as I have to, through the specifics of the factual base which the Government say justifies this novel provision, which, let us not forget, strikes at the heart of freedom of the press, law and order, and open justice.

My first point is that the JCHR report to which I have just referred put questions to the Secretary of State for Education. The 13th question was:

"In each of the last three years, how many examples is the Government aware of in which allegations against teachers have been made public before charge?".

The Committee will appreciate that that is the very heart of Clause 13. Publicity after charge is unaffected by the Bill. It is still a highly complex subject, even after charge, but unless there is clear and voluminous evidence that criminal allegations against teachers have been made public before charge, I submit that there is no ground for Clause 13. What was the reply of the Secretary of State to this pregnant question? It was:

"The Department does not routinely collect this data".

7.15 pm

The next question from the Joint Committee-question 14-asked the Government for,

"specific examples ... of allegations against teachers"-

again, before charge. They came up with just six cases, referred to in their human rights memorandum. I urge Members, if they are interested, to read the reports of those six cases on page 63 of the June report. Each is a verbatim transcription of the pre-charge press report in each of the six cases. There is nothing but what was actually published on those six occasions: no spin, no colour, nothing. Four of the excerpts from pre-charge publication detailed the suspension of the teachers concerned and two of them detailed their arrests. I emphasise that they were dry and factual; there was no colour and no tendentiousness. None of the reports took more than four lines.

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That did not stop the Government from asserting, in paragraph 114 of their extremely long and careful response to the Joint Committee on Human Rights:

"In the examples that the Government has of allegations against teachers being published before charge, the Government is satisfied that in the majority of cases there was no overriding public interest in",

publishing allegations at an early stage. But how many cases were there? Six-and, as I said, in four of those cases there had already been a suspension, in two there had been an arrest and in none of them was there any additional comment. In advancing the case for the need for Clause 13, the Government relied principally on what they were told by NASUWT, because these six other cases came by another route. The union was extremely professional and open in providing me with further information in addition to that which it gave to the Government and the JCHR, and which appears in tabulated form on pages 62 and 63 of the JCHR's 13th report. NASUWT gave me brief details of five further cases of the publicising of allegations against teachers which it obtained from its solicitors, yet the majority of those five cases do not involve any pre-charge publicity at all. They were all newspaper reports of trials-mainly acquittals.

Even on the issue of the number of allegations made against teachers, which my noble friend Lord Hill of Oareford made quite a bit of in responding to the set of amendments before the ones that I advance now, the Government appear to have misinformed themselves. The Minister, Nick Gibbs, said in the other place on 22 March that,

"since 1991 the number of allegations"-

against teachers-

"had increased, and ... the majority of allegations made against teachers were false or malicious".-[Official Report, Commons, Education Bill Committee,22/3/11; col. 553.]

Both those points were reiterated by the JCHR in its June report, but the statistics show otherwise. Over the past 10 years, in the statistics for 2000 to 2010 from NASUWT on cases brought to it of teacher involvement with criminal allegations, the average number of reported allegations per year is 181. However, for the past three years there has been a decline: in 2008, not 181 but 148; in 2009, 115; and, last year, 107. Yet the Minister in the other place said that the number of allegations had increased, which is simply wrong.

Further, the NASUWT figures do not state how many allegations were false, let alone malicious. Many allegations fizzle out because of insufficient evidence or corroboration, or because other aspects of the case cause difficulty. I have mentioned the age of witnesses, for example. Your Lordships should also not forget that the authorities involved in schools and in prosecutions, with the police and the courts, are all incredibly overstretched and are usually making choices between a superfluity of cases which they could prosecute. Again, it seems that the Government are working blind on this.

Incidentally, the ATL provided the Government with some rather bald statistics from a survey that it did in 2009-no details of which are given in any of the documentation. It stated that 50 per cent of teachers said that they or a colleague had had false allegations

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made against them. The fact that some of these allegations were second or third hand, with no indication of whether they were in respect of criminal behaviour by a teacher, and most of all, of whether there was any pre-charge publicity, makes those statistics wholly unreliable as a basis for supporting a change in the law of this importance.

In case any Member of the Committee thinks that the number of convictions, including cautions, is insignificant in relation to the number of allegations, the NASUWT figures show that in 2009, 15 per cent of all allegations resulted in cautions or convictions. That is not an insignificant number.

Baroness Perry of Southwark: At Second Reading, I quoted figures for the past 10 years from the department which showed that more than 1,700 allegations against teachers were made. If 85 per cent of them were not upheld, the figures do not support the argument that the noble Lord is making.

Lord Phillips of Sudbury: With great respect to the noble Baroness, I cannot agree. Perhaps that is because I am a hoary old lawyer and she, happily, is not. A 15 per cent conviction rate in respect of all the allegations made is a very high outcome. I will happily discuss this with the noble Baroness outside the Room. The ATL figures seem to me to be hopeless as a basis for bringing in this important reform.

The JCHR seems to be lacking in awareness of the balance of injustice and harm between pupils, particularly young ones, and their teachers when it comes to criminal allegations. We are in danger-and in the other place they are even more in danger-of expecting too much of the law. It is not the finely tuned truth machine that ideally we would like it to be. It never can be, given the machinations of mankind, despite the best efforts of our excellent judiciary. We do not talk about rough justice for nothing. That is why in criminal law we have a test of proof beyond reasonable doubt, rather than the lesser, civil test which is based on a balance of probabilities. The bias towards the accused is necessary to protect the innocent from conviction, which we as a society believe is much more important than convicting every guilty person.

We are not talking here about conviction or acquittal but about the freedom of the press to report, within the bounds of defamation, where criminal allegations are made, pre-charge, against teachers. We have to balance their vulnerability to unfair reporting against the undue sheltering of teachers, the interests of actual and potential victims and the interests of the public.

I turn finally and briefly to paragraph 112 of the June report of the JCHR, which states that,

"defamation proceedings offer no protection",

to a teacher,

"where a report states that an allegation has been made",

provided that it,

"does not assert that the allegation is true".

The noble Lord, Lord Hill, referred to this in his earlier reply.

As one who has done a considerable amount of defamation work and overcome that defence put up by newspapers, I can only think that the committee is

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wrong when it says that libel proceedings offer no protection. The Reynolds case in 2001 and the Jameel case six years later prevent newspapers sheltering behind the defence of qualified privilege-or reportage, as it is called, in relation to a matter of public interest unless they comply with sensible tests. In the Jameel case, the noble and learned Lord, Lord Nicholls of Birkenhead, said that newspapers would not have a defence unless the report was responsible, fair, on a matter of public interest and in compliance with certain other tests, which would include the obligation to evaluate fairly and sensibly the basis of an allegation. They cannot simply recycle a verbal report of an allegation or something given to them by letter without checking. They have also to check with the person aggrieved, the teacher. They have to give the gist of both sides of the story and, importantly, they have to look at the whole tenor and pitch of the article. I hope that that is enough to show that teachers who are the subject of sensational, biased, unfair reports pre-charge have protection. One or more of the unions might make it their business to pick up a couple of test cases, which they could take and use to make their point. Believe me, that would reverberate around Fleet Street very quickly, as my noble friend Lord Black will confirm.

Teachers might also take up the invitation of the Press Complaints Commission-again the noble Lord, Lord Hill, referred to this-to report grievances in relation to pre-publication publicity. He rightly said that there had been none. But, as the JCHR report says, the notion that no complaints are made because it is a useless thing to do is simply not right. First, it costs nothing to make a report to the Press Complaints Commission. Secondly, it has very real powers over its newspaper members. It can and does make them publish retractions and apologies. So I do not agree with what it and my noble friend have asserted.

To summarise, I sincerely believe that the case for this most important of limitations on press freedom, albeit put forward with sincere concern for a most highly valued section of our community, is unsafe. Surely, the onus is on those who would restrict press freedom, especially to a single group and in a way never ventured before, to prove beyond reasonable doubt that such a change is unarguably essential. But, as I have endeavoured to show, the Government's lack of direct relevant evidence as to the present extent of pre-charge publicity affecting teachers is all but total. It is that publicity, and that alone, which Clause 13 addresses. Not only is the need for the clause wholly unproven but it could and will unfairly disadvantage pupils and, in the worst cases, prevent teacher abuse ever seeing the light of day if a charge for whatever reason, and there are many, is never brought or if a school fails to bring disciplinary procedures against a teacher, and there are many reasons why that might be the case. Nor will truth be a defence, as I have indicated. For those main reasons, I propose that Clause 13 should not stand part of this Bill.

Baroness Hughes of Stretford: My Lords, I did not think that there would be anything for me to say on the clause stand part debate but I want to make one broad comment. When I opened the consideration of the first group of amendments, I introduced the criterion

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that one of the bases on which we should make a judgment about this matter is the basis of the evidence. In summing up that debate, I pointed out that the Government have not produced what the Minister said was important; namely, an evaluation of the impact of the current measures on reporting of pre-charge allegations against teachers. The whole Committee has to be very grateful to the noble Lord, Lord Phillips, who has researched this and has produced some figures today, which look remarkably small in terms of the incidence of pre-charge reporting of allegations against teachers.

Today, I will go no further than to say to the Minister that, at the very least, he has to come back to every Member of the Committee before Report with as definitive information and statistics as he can gather on the current incidence of the reporting of cases against teachers before charges are made and some evaluation of the quality of that evidence. One point that I should make to the noble Lord, Lord Phillips, is that I think that his figures are very compelling. I cannot make a judgment today on whether they are the total number of cases or not. It may not be possible to get that information, but the Committee, in deliberating further on Report, must have the best information that the Government can put forward on that matter and an evaluation of how robust that information is so that we can make a judgment.

7.30 pm

Lord Black of Brentwood: My Lords, I will delay the Committee for just one minute. I originally raised these matters at Second Reading and I wanted to say a few words in support of the noble Lord, Lord Phillips, who has made a compelling and overpowering case. I am also mindful of the remarks that the noble Baroness, Lady Howarth, made earlier about the work of the NSPCC, Childline and others involved in this area.

During our debate in Committee on Monday, I was struck by something that the noble Lord, Lord Peston, said. He said that,

"the fact that these people are young children does not mean that they have no human rights. None of us would tolerate being treated in this way on anything else that we encountered as adults. Whatever was going on, and if we were doing something wrong, we would certainly expect to be dealt with with due process and the right of appeal against anything that was relevant".-[Official Report, 4/7/11; col. GC 8.]

To sum up, my main concern with this clause is that what we are doing-this is the real mischief of this clause-is removing from vulnerable children the right that every other citizen in the country enjoys, which is to publicise a grievance or complaint. We should be very clear about that. We are saying to children-this is where the work of the NSPCC and others has been so important in previous years-"Unlike any other group in society, your complaints are treated as false until a charge is made". I do not believe that that is what the Government want. I support the noble Lord, Lord Phillips.

Lord Hill of Oareford: My Lords, I will also be brief as we have already rehearsed many of the arguments this afternoon, so I will not detain the Committee for

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long. The noble Baroness, Lady Hughes of Stretford, referred to assembling the information that we have. We will, of course, do that although some of it is slightly harder to come by, given its nature.

We have moved a long way in the course of the afternoon-this often happens in your Lordships' House-from the views that have been expressed to us all by the unions and by teachers. Some of their figures as regards the scale of false allegations are so high that I do not believe them in the sense that this is the sort of story that people relate to other people and so it spreads. Like me, the noble Baroness will have seen survey research which shows that 50 per cent of teachers claim to know someone who has been the subject of false allegations. That seems to me a suspiciously high and precise figure. One should not suggest that there is not a problem that needs to be addressed or that a consequence of this measure is that child protection and safeguarding will be weakened.

I support the great British media but arguments have been adduced in relation to the crusading role of the media in child safeguarding issues. I can think of many cases where that is true but I can also think of many where the crusading purpose has been directed at increasing newspaper sales and producing salacious articles. We must be careful not to go too far in taking the moral high ground and taking our eyes off some of the practical issues which teachers and head teachers tell us that they face and fear. We should see this provision as part of a broader range of measures to try to make teachers feel that they have the backing of us all in their difficult job of maintaining order and discipline so that children can learn. One must not lose sight of that point.

My noble friend Lord Phillips quoted powerfully from the exchange between the JCHR and the Secretary of State. Paragraph 1.48 of the JCHR report states:

"However, we are satisfied that the evidence and justifications relied on by the Government are sufficient to justify the imposition of such reporting restrictions as a necessary and proportionate means of achieving the legitimate aim of protecting the reputation and rights of teachers and supporting teachers in their role as the professionals responsible for classroom discipline".

It is worth recalling that the JCHR concluded that the evidence-not as complete as my noble friend would like-led it to that conclusion.

In the course of this afternoon, there have been forceful arguments in favour of extending the clause from the Benches opposite and from some of my noble friends. There has also been opposition to its current breadth. I am aware of the concerns. I would be happy to speak to my noble friend about the earlier issue and try to provide further reassurance. As I have said, we will bring forward the review of the impact of these provisions and we will continue to monitor closely the issues that have been raised.

I argue that these provisions would not enable a teacher to get off scot-free from wrongdoing. Safeguarding duties remain in place. The clause states simply that anonymity should remain in place until someone is charged. I have a difference of opinion with my noble friends Lord Phillips and Lord Black about the effectiveness as a practical act of recourse of the PCC or of a libel action. I understand the arguments of both noble Lords-one with great experience as a

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lawyer, the other with great experience of working with the press. In previous situations, people have always said, "There's always the PCC", or, "You can always bring a libel action". I am afraid that I do not believe that the PCC is an effective protector of people, and I do not believe that bringing a libel action would be a practical course of action for a teacher who has had all kinds of awful things going on and their reputation traduced.

Those are the arguments in favour of the clause. I have listened to the points raised by noble Lords on all sides this afternoon. I will try to provide some more statistical information, which I hope will help the Committee. I will also reflect on the points that have been made. On that basis, I beg to move that Clause 13 stand part of the Bill.

Lord Phillips of Sudbury: As before, I am grateful to the Minister. I ask him to reflect on the statistics, as the noble Baroness, Lady Hughes, invited him to do. It is essential that the unions provide us with concrete examples of pre-charge newspaper reports of a salacious nature, because so far they have not produced one. The only reports they have produced have been four-line factual reports. They must produce pre-charge reports.

Finally, the noble Lord, Lord Hill, berated me-no, not that. He would not do that.

Lord Hill of Oareford: That would be libel.

Lord Phillips of Sudbury: No, it would be slander. He very reasonably said, "Look at the end of the

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JCHR report where it exonerates the Government". Indeed it does, but how it does is beyond my tiny brain to understand. I suspect that the committee was confused.

Baroness Stowell of Beeston: As a member of the Joint Committee on Human Rights, I feel that I ought to respond to that point. I am very sympathetic to the points that have been made, particularly by my noble friend Lord Black of Brentwood. It is my experience in the time that I have been on the committee that its conclusions are made very carefully, after a lot of very careful deliberation. I do not have any experience of the committee concluding in that way without being absolutely confident in its views. It is worth reinforcing that point.

Lord Phillips of Sudbury: I am grateful to the noble Baroness, and I would have been more cautious in my remarks had I known she was here. I think they are blinded by the numbers of allegations thrown around. Those tables are unscientific to an extraordinary extent. Let us remember that all we are interested in is pre-charge newspaper publicity. If the noble Baroness reads her long report, she will find no satisfactory evidence of that. If it is there, let us please have it. On that basis, I shut up.

Clause 13 agreed.

Baroness Garden of Frognal: My Lords, this may be a convenient moment for the Committee to adjourn until Monday at 3.30 pm.

Committee adjourned at 7.41 pm.

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