Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004
Lord Lucas (Conservative)
My Lords, I would like to start with a thank you and an apology. The thank you is to Mr Mark Stockdale and his team at the DfES, who have been extremely helpful in enabling me to understand all the systems and documents that lie behind the order. The apology is for even suggesting that paragraph 6 of the order represents a diminution of the rights of the pupil, when on a proper and careful reading of the instrument that it amends, it is clear that it provides an additional right for the pupil. It makes it less likely that the tribunal that sits in judgment on him will be in hock to the school or, at least, to the education system.
That said, paragraphs 4 and 5 continue to concern me. The original Bill did not really discuss what the standard of proof was to be in exclusion cases; that came to be something that was covered by case law. Probably the most relevant case was R v Headteacher and Independent Appeal Committee of Dunraven school. Basically, relying on previous judgments in cases to do with anti-social behaviour orders, it said that when what the child was accused of was in effect a crime, the appropriate standard of proof was the criminal one. In paragraphs 4 and 5 we have a reduction of that standard of proof to a civil one.
In its raw form, that will not do—and it will not do for two reasons. First, a child and a school are essentially unequal: if it is a question of a word of a teacher against that of a child, the balance of proof favours the teacher every time. A child does not find himself in equal circumstances. Secondly, the consequences of exclusion can be extremely severe, particularly if the child has been accused of something that is really nasty, such as theft, racism or assault. It is hard to defend the idea that under those circumstances the simple balance of proof should be what governs the way in which a tribunal, an appeal panel or a headmaster reaches their decision. It needs to be something stronger to be fair and just. As the department has explained to me, it is intended that that should be so; that is set out in the current version of guidance that covers these things. However, it will lead to some problems.
First, there may be some human rights angles to the matter, although it may be some while before anyone decides to try their luck under the Human Rights Act. It is a question at base of whether, if a child is accused of something like theft and permanently excluded from school, whether it is a criminal or civil action. It seems to me to lie between the two. It is civil in that it was initiated by a civil process, and the proceedings were civil in nature. None the less, the child is charged with a crime, the consequences are punitive rather than preventive and it results in a form of conviction. Somewhere in between is probably where that will be adjudged to lie in Europe. I suspect that there will be a case one day, especially if we continue on the basis that the right standard of proof is the pure civil one.
Secondly, there is the question of how it will work out in practice if we adopt the Government's proposal that this should be the civil standard of proof, as ameliorated by guidance. The present wording of the guidance is as follows:
"The standard of proof to be applied is the balance of probabilities, i.e. if it is more probable than not that the pupil did what he or she is alleged to have done, the head teacher may exclude the pupil. However, the more serious the allegation, the more convincing the evidence substantiating the allegation needs to be".
In other words, we do not have a definite test but a sort of sliding scale. That is what the judges in the cases relied on in Dunraven were trying to avoid; they were trying to get to a simple test that would apply in all cases. Their feeling was that the criminal standard of proof was one that was, in practice, not far removed from the civil.
I am not sure that I share that view. If one expresses the criminal standard of proof as that the headmaster or the appeal panel have to be sure that the child has done something, that may in practice impose a higher standard than is appropriate. I believe that everyone would agree that, certainly at the lower levels of punishment—for example, in the case of a child being excluded for a few days then welcomed back into the school afterwards, having learned his lesson—if a child is unfairly treated in such a case, it is just life. They may have been lucky to get away with half a dozen things beforehand—and then, of course, the one that they were caught for, they did not do. There is a certain level of rough justice in life that has to be accepted, in the ordinary process of a simple tribunal such as an exclusion hearing.
As an aside, it is well acknowledged that there is some improvement necessary in the standard of such tribunals. The Council of Tribunals already has this very much on its menu, to ensure that the standards of justice apply. In some of the cases that come through, there are some truly astonishing lapses. That is rather outside the course of this regulation, but it is something that needs to be improved in other ways.
People will be faced with a decision, first, on how serious the matter is. Depending on how serious the alleged offence is, they will have to decide where on the scale of civil to criminal the balance of proof should lie. There is a formulation in one of the cases, which introduces the word "distinctly". It says that the appeal panel should consider that it was "distinctly more likely" than not that a child had done what he was said to have done. In other words, that shifts the balance. That is what might be called the "enhanced civil standard of proof". To my mind, that sounds to be the right level to aim at. It is understandable; is clearly doing something to offset the inherent bias against a child; and is producing something that can be used consistently. I should like to see regulations that have that on their face, rather than relying on the rather indefinite graduated scale that is currently in guidance—and which I believe will lead quite quickly to litigation as to whether the appropriate point on a scale has been reached in a particular case.
It is an underlying principle of common law that if one is accusing someone of something really serious, one must have a decent standard of proof to go with it. I do not believe that, in secondary legislation, the Government are going to be able to avoid that. I believe that the judges will come back at them in a different way. Therefore, I urge the department to consider again the wording in paragraphs 4 and 5 and go for the enhanced standard. I do not believe that that will cause problems in the ordinary little matters that might lead to someone's exclusion. If a child has been a consistent misbehaver and there was a lot of evidence of it, it would appear distinctly more likely than not that he or she had done something in a particular instance. One is still in a world where hearsay, precedent and previous actions can all be brought into account. However, I think that it will produce something that is likely to be much fairer when you get to the more serious incidents.
However, if you are going to deal with the guidance as it is, that will have further problems. As a governor on an appeal panel, I would find that wording extremely difficult to deal with. I would be dealing with a parent and a child who have presumably been the cause of some trouble in the past and who certainly do not have an unblemished record, which is why the head has decided to throw the book at them. I am entirely uncertain where on this scale the standard of proof should lie. In the context of the kind of relationships that governors have with heads, it becomes very difficult to argue the case fairly.
If one is going to take a position against a head and say that he has not got it right, that he must look again at the matter and take the child back, he will have to be given somewhere to stand. He will need something to rely on, something which is set out explaining how the particular case should be treated. If we are going down the guidance route, I would urge the Government to provide governors on appeal panels with some kind of toolkit so that they have something to point to which says, "In cases like this that level of proof should be adopted". The word of a teacher against the word of a child is not a fair comparison in cases of severe import.
Let us take an example. A seven year-old boy with a statement of special educational needs who had not been receiving the support specified in the statement, and was presumably somewhat out of control, was accused of standing on a teacher's hand. He was excluded for 25 days. He was actually accused of "assault" on the teacher. He was accused of something very serious when it was just an incident between a boisterous seven year-old and a teacher. There were no other witnesses.
In those circumstances the right thing is not to accuse someone of "assault" but to accuse them of "inappropriate behaviour", which would merit a lesser sentence. If the accusation and sentence are that serious then the proof ought to be greater. There ought to be some element suggesting that one could say, "For one reason or another, I believe that the child intended to hurt the teacher". In other words, there should be additional evidence going beyond the incident in question. That could be picked up by illustrations or by more generalised wording. Personally, I find illustrative cases helpful. However, they can become too specific, so that one tries to relate one case to another when one should be taking a more general judgment. But I am sure that producing a toolkit is something that the department would find itself able to do with its customary skill.
Indeed, if we are going down that route, there are other areas that could also be covered, such as how to prepare witness statements and school incident reports. The use that might be made of anonymised statements has come up in appeals a number of times. That was a relevant issue in the Dunraven case where the pupil concerned had no means of cross-examining or questioning and no access to anonymous statements that the appeal panel had from other pupils.
One could also look at the procedures to be followed in interviewing pupils, both alleged perpetrators and possible witnesses, and how to deal with the reintegration of permanently excluded pupils. Other such matters might usefully be dealt with in guidance to provide governors, who have to stand up for the public rights of the child, with sufficient material to be able to argue against the head without having to get personal about it, without having to say, "On this occasion I have to distance myself", and with the head understanding that that is the case. If we are going down the guidance route, some such sorts of supports would make a great difference. However, I return to my basic point. I would like to see in regulations the enhanced civil standard of proof. That would make things much simpler, much cleaner and much fairer. I beg to move.
Moved to resolve, That this House calls on Her Majesty's Government to amend paragraphs 4 to 6 of the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004 (S.I. 2004/402), laid before the House on