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Education and Inspections Bill

I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 216 to 217 not moved.] Clause 81 agreed to. [Amendment No. 217A not moved.] Clause 82 [Determination by head teacher of behaviour policy]: [Amendments Nos. 218 to 220 not moved.] Baroness Walmsley moved Amendment No. 221: "Page 66, line 15, at end insert ““such times including in particular—""(a) the journey to and from school, and""(b) during work experience placements””" The noble Baroness said: I shall speak also to Amendments Nos. 222B, 222C, 222D and 237A. The amendments are about how the disciplinary code is enforced—the where, the when, the who, the why, the what and all those questions. Amendment No. 221 is intended to limit the circumstances under which staff may be expected to regulate the behaviour or conduct of pupils off school premises. Under the Bill, staff could impose penalties for behaviour that has nothing to do with the school. That could give staff the responsibility to manage or even to police a pupil's behaviour at any time and for any reason. Additionally, staff could base a decision on hearsay evidence, because they are not around during the holidays, responding in a disproportionate manner to an unproven allegation of misbehaviour and thus undermining the pupil’s right to know and understand the charge and be able to defend themselves against it. Naturally, I do not expect that many schools would behave in such an unreasonable manner, but what worries us is that under the Bill they have a duty to manage pupils' behaviour in circumstances where it would not be reasonable to do so. It is difficult for schools to investigate allegations of misbehaviour that occur off-site. Children have the same rights to privacy and family life as adults under Article 8 of the ECHR. If schools were to interpret the clause very widely, one outcome could be an interference with those rights. After all, in the home, in the garden or when children are out with their parents in the park or on the beach during the summer holidays, it is up to parents to manage and police children's' behaviour, not the school. The Bill should clarify that schools must not seek to impose penalties for the behaviour of pupils when they are under the control of their parents. In his report, Sir Alan Steer recommended that the legal right to impose discipline would include extending the teacher's ability to exert authority beyond the school, "““to any off-site activity which is a continuation or extension of schooling such as a field trip or a school journey””." That is perfectly reasonable. We seek through the amendment to put parameters around that power and duty in order to be a little more specific about where and when it is both reasonable and feasible for the school to manage the pupil’s behaviour. 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. 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, 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: "““Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law””." 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: "““Having to prove that a confiscation was lawful seems to reverse the ““innocent until proven guilty”” principle, but that is not, in fact, what the clause is about. Clause 81 does not make somebody guilty. Quite the opposite: it makes him innocent if he can show that his actions were lawful””.—[Official Report, Commons Standing Committee E, 10/5/06; col. 862.]" 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.