Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004
Lord Lucas (Conservative)
rose to move 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
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
Lord Shutt of Greetland (Shadow Minister, Northern Ireland Affairs; Liberal Democrat)
My Lords, I rise to speak to my later Motion to pray against Statutory Instrument 2004/402. As my noble friend Lady Sharp of Guildford cannot be here today, I am speaking in her place. I declare an interest as a former member of Calderdale Council education committee. I have also been a governor of the Brooksbank School, Elland, since 1974. I stood down as chairman shortly after coming to this place but am now an associate governor.
I shall try not to be too repetitive, bearing in mind the comments of the noble Lord, Lord Lucas. The statutory instrument mainly concerns the regulations in respect of pupil exclusions and the qualifications required for membership of appeals committees in respect of such exclusions. It comes at a time when school exclusions are rising again. From a peak of 12,668, in 1996–97, they decreased to 8,323, in 1999–2000. The last available figure, for 2001–02, was an increase to 9,535. I need not say much about the downside to exclusion, which can place one on the road to unhelpful behaviour throughout life.
Regulation 4 provides that where the head, school governors or appeals committee are moving towards excluding a pupil, when the facts are established, the case should,
"be decided on a balance of probabilities".
In 2003 the Court of Appeal considered the case of R (on the application of S) v the Governing Body of YP School. The pupil concerned was accused of an offence that would normally be a criminal offence. It was decided that the head and governors had to ensure that the standard of proof used was that which applied in a criminal case—beyond reasonable doubt—rather than the standard of "on the balance of probabilities". It is therefore important to ask why there is a change in the regulations and guidance notes.
I have had some involvement with difficult and challenging pupils and I know that exclusion can be the precursor to a pupil's start on the road of an anti-social lifestyle. Although I am sure there are more than four elements in a case, there are four main elements: the pupil, the school, the parents and the wider community. The pupil could be quite happy to be excluded, whereas the parents and the community want to see him in school. The position of the school is crucial. I have looked carefully at the 65 pages of guidance notes. Guidance Note No. 17, on page 7, states:
"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 may exclude the pupil".
"However, the more serious the allegation, the more convincing the evidence substantiating the allegation needs to be".
I would turn that on its head. The less serious the allegation, the less convincing the evidence needs to be. However, the result could still be that that pupil is excluded. I therefore do not believe that that guidance note is very helpful.
If the potential exclusion is alongside a criminal investigation, should not the school's procedures and the criminal procedures be the same? Perhaps school law and criminal law are not the same, but they will have to deal with the same alleged offence. Is it not therefore reasonable that heads, governors and appeal committees work on the same basis as that on which the jury will have to work at a later stage? It is for those reasons that I pray that the statutory instrument be annulled. The regulations reduce the burden of proof, and the guidance notes are not as helpful as they should be.
I am sure that my second point can be disposed of quite quickly. Those concerned about those matters have also been concerned about the make-up of the committees. Of course, the committees apply only if there is an appeal to the heads and governors' exclusion. Does the Minister agree that the make-up at the moment is that there is an independent chairman, one or two serving heads, and governors who actually could be teachers or heads? Under the regulations, that becomes an independent chairman, one or two serving heads, and one or two experienced governors—but those experienced governors must not have been teachers or heads in the preceding five years. If I am right in that, that group of people might look less like what we might call a heads support group, and more like a balanced team of people with relevant experience. There has been some concern about that, and I should be grateful for clarification.
The Earl of Listowel (Crossbench)
I am sorry, my Lords; I did not mean that. In response to a Question on the imprisonment of Mrs Amos, a Minister said that there was justification in imprisoning parents for not sending their children to school, because when children miss school it can have terrible consequences in their future lives. I appreciate what the Government have done in terms of improving the alternatives to mainstream school for children who are excluded. However, very often, that is still not a full school day. The time is shorter, and they do not necessarily get the full school timetable. I watch the matter very carefully, and hope to see that the Government are consistent in what they do on it.
I also note that, in the Children Bill, there is a new and very welcome duty on local authorities to promote the education of children in care. We know in the past how poorly they have been catered for. Children in care contribute highly to the number of children excluded from schools, so I watch that matter with very great concern, too. I recognise the difficulties involved. I welcome the reduction overall in exclusions from school since the Government took power, but I am concerned about the current rise.
Baroness Seccombe (Conservative)
My Lords, I thank my noble friend Lord Lucas for bringing the matter before the House today, and for the very useful debate that has followed.
The question of discipline in schools and expulsion is one that is particularly timely when one reflects on the case of Abdul Ali reported in the newspapers this week. The Opposition are concerned by the number of legal challenges to schools and the teaching profession. They are not only hugely costly in financial terms but, more importantly, undermine the ability of teachers to exert authority in the classroom and within school grounds. Many teachers have found their careers and reputations undermined and in some cases ruined by what could be termed trivial lawsuits. We would like to see a root-and-branch review of the law so that it works with teachers rather than against them.
School trips and excursions are under threat in case people claim compensation when things go wrong. I consider it a gross waste of public resources for accidents that in my day were considered par for the course. I feel that there should be a return to the commonsense position that accidents do happen and should be settled by mediation, not dragged through the courts. Can the Minister assure us that she will carry out a comprehensive review of how legal challenges, often introduced with the best intentions, have simply made teaching more difficult, worrying and expensive? In all probability, the only winners in such situations are the lawyers; everyone else is a loser.
Abdul Ali was expelled for suspected arson, and now stands to be awarded £10,000 due to the hard work of Cherie Blair as counsel. Whatever the merits of the case, where will the money come from? What will all the other students have to forgo to settle the bill? The decision has left teaching unions aghast, and leaders have warned that the case could open the floodgates to other claims. The National Association of Head Teachers has said that it is merely,
"another example of the way in which schools are being battered by legal claims".
Will the Minister please provide us with the figures of money lost from school budgets in such a way for the past year compared to 10 years ago?
Of course I understand the points made by my noble friend Lord Lucas regarding the raising of the standard of proof before a pupil can be expelled. It is essential that no pupil is expelled who should not have been, but I believe that we need a more fundamental revision to ensure that we have the right balance between the rights of pupils and head teachers.
A basic right to education under the European Convention on Human Rights is all very well, but when just one pupil's actions disrupt the education of all the others, or when they limit the teachers' authority and ability to teach—as in, for example, the case of two teenagers expelled from Glyn Technology School in Surrey for sending death threats to a teacher in 2002—head teachers should be able to exercise authority. Children will not comply with rules unless they know where the boundaries are and that rules will be enforced by disciplinary action. Schools cannot be efficient and provide sound education unless children and their parents respect the rules that apply.
Baroness Andrews (Baronesses in Waiting, HM Household; Labour)
My Lords, I am extremely grateful to all noble Lords who have spoken. As always, they brought a wealth of experience, from the associate governor to the close connections that other noble Lords have with the education system, and with certain groups of children in the case of the noble Earl, Lord Listowel. The noble Lord, Lord Lucas, opened the debate with very thoughtful remarks in terms of the rights of the child, and we must concentrate on getting the balance right, as the noble Baroness, Lady Seccombe, concluded in her remarks, between the absolutely legitimate rights of teachers in school and the concern and care that we must have for the proper environment of the school, in which teaching and learning can take place with proper behaviour and discipline.
The regulations and Motions give us an opportunity to reflect on some of those issues, but the burden of my remarks this afternoon will be to address the issues raised specifically by the noble Lords, Lord Lucas and Lord Shutt, in relation to the regulations themselves.
I am always impressed by the care taken to ensure that pupils should be seen to have a fair deal. That certainly came out very strongly in what the noble Earl said. Let me also stress that the Government are equally concerned that pupils should be treated fairly and that head teachers can apply the law fairly and consistently to all pupils and staff. I hope that I will be able to give the reassurance the noble Earl seeks. All we are doing in the regulations being brought forward is to restore the status quo. There will be no reduction in rights for pupils or in the fairness with which they are treated. Rather, the right balance will be struck between those rights and the rights of head teachers to make proper judgments which only they, as professionals, can make.
The noble Lord, Lord Shutt, remarked on the rather "heavy" expression used in paragraph 17 about exclusion. It is very important to stress, as does the whole tenor of the guidance itself, that exclusion—in particular permanent exclusion—is an extremely serious matter for both the child and the school. No head teacher can or would want to take it lightly. The 64 pages of guidance referred to make it clear that, for example, exclusion is not a decision to be taken in the heat of the moment. The decision is not to be taken off the cuff. Often it is taken only after many other avenues have been explored and exhausted. It is taken after investigation and the consideration of evidence which children themselves can bring to support their own cases. Moreover, people can speak on their behalf. There is no inherent bias against the child. Only in exceptional cases would a head teacher think it better to exclude a child than to work even harder to try to keep that child in the learning environment of school.
When considering the regulations, we need to think about the chronology which has led to this development. The regulations before us seek to define for the first time in legislation the standard of proof that should be used in exclusion cases. Until recently, our guidance has advised that decisions should be made on the "balance of probabilities" which, I should say to the noble Lord, Lord Shutt, is not a new term. It has been in use for many years. However, previously it has been set out only in guidance.
Exclusion decisions on this basis have long been made successfully; they are tried and tested. Head teachers know what the term means and are able to apply it successfully. It has also been defined in decisions of the courts over a number of years, including in exclusion cases. The concept was set out in guidance issued by the Secretary of State in January 2003 and all who make decisions on exclusion are required to have regard to it. Turning to the cases cited by the noble Lord, I would be interested to know whether the guidance in those cases had been followed properly.
However, as noble Lords are aware, last summer the Court of Appeal considered an exclusion case related to the theft of a school guitar. The judgment arrived at was whether the pupil was accused of an act which is also by definition a crime. It was advised that the head teacher should apply the criminal standard of proof; that is, he or she should be satisfied beyond all reasonable doubt that the pupil actually did what he was accused of. Since July 2003, rather than by abiding by the previous standard of the balance of probabilities, head teachers have had to apply a different standard of proof, although the balance of probabilities has continued to apply for other cases. I should say that this change in the law has caused considerable concern to the Government and, just as important, to head teachers as well.
To deal with the change brought about by the judgment, the Government issued temporary guidance advising head teachers and panels of the change in the standard of proof. However, we made it clear at the time that we recognised that the change was liable to create practical difficulties and that new regulations would be required. The effect of the amending regulations before the House would be simply to return us to the standard of proof that has long been familiar and well understood. It has been tried and tested without complaint, a point which I cannot stress too much. The changes proposed are supported by nearly everyone who responded to our informal consultation earlier this year, including head teacher associations and, significantly, the Council on Tribunals.
Before I deal with the reasons for restoring the status quo and outline the difficulties that have been created, I shall take this opportunity to respond to the points raised by noble Lords who have addressed wider issues than exclusion in the context of schools. I shall explain briefly the better strategies that we are employing in managing school behaviour. I want to pick up in particular on the concerns expressed by the noble Earl, Lord Listowel, and the noble Baroness, Lady Seccombe. We are always aware of the need to support teachers and pupils and to provide a balance of support. We are investing £470 million in a wide-ranging Behaviour and Attendance Strategy which will improve standards of behaviour and develop and encourage the use of alternatives to exclusion. This is an extremely important investment, providing a more positive way of approaching the whole subject of behaviour and discipline in schools.
However, exclusion has to continue to be one of the sanctions for serious misbehaviour of the kind referred to by the noble Baroness. It must be available to head teachers who need to be able to arrive at appropriate decisions. They need to strike a balance between the interests of the excluded pupil and the wider interests of the school community.
Undoubtedly we are making significant progress. The noble Earl referred to the reduction in the number of exclusions. Although we are seeing a slight rise at the moment, we have to set that in the context that exclusions are now 25 per cent below the peak reached in 1996–97, at which point the rate was unacceptable. We set a target to reduce the level by one third, which was achieved a year early. However, we have not set any more national targets because, to be frank, we believe that those targets have fulfilled their purpose. It is time to move on to a more proactive, preventive and inclusive policy. One element of that has been the effort to bring local education authorities together in workshops so that they can share the policies that are currently working in schools, those that help to prevent exclusions.
Another part of the strategy is to provide support for pupils themselves through learning mentors, whereby we can help to diagnose the difficulties that cause such frustration not only to children's learning, but also in their social and personal lives both in and out of school. Alongside that—given the noble Lord's interest in statistics, I am sure he will be pleased by this—we have made progress in establishing the reasons for exclusion. We have started to collect information about fixed periods of exclusion, for which no figures were available. From the summer term of 2003 we have been collecting termly exclusions data from local education authorities and we will be able to publish that information for the first time this May. We hope that the data will be interesting and helpful.
We have also made further progress on strengthening the rights of parents to appeal, along with the rights of excluded pupils to receive an education. Over the past year, 1,100 have taken advantage of the right to appeal, with the result that one quarter of schools' decisions were overturned. Equally, all noble Lords will agree that even when pupils are excluded from school, they are not excluded from education. Since September 2002, all local education authorities have been committed to providing all permanently excluded pupils with a full-time education. I am delighted to say, because it is a great credit to LEAs, that all but two are now delivering against that commitment. Moreover, the DfES is working closely with those authorities which are experiencing difficulties.
We are also supporting schools in their efforts to achieve a better balance between the interests of the individual pupil and those of the school by reforming the legislation relating to exclusions, which moved from primary into secondary legislation in January 2003.
The noble Lord, Lord Shutt, asked about the composition of the appeal panels, a point which I shall address in detail later, but let me say for now that they are made up of a serving or recently retired head teacher, a school governor and a lay person. That restores the kind of balance we want to see. Moreover, panels cannot overturn decisions purely on a technicality. As long as the head teacher has excluded a pupil for good reason, the decision cannot be overturned. Finally, we are working with the Council on Tribunals. The noble Lord, Lord Lucas, said that he felt that the council was beginning to be satisfied with what is being achieved.
We very much want to improve the standard of procedures and decision making in appeals panels. Training material is available for panel members and we are developing further materials for clerks and the chairs of governing bodies, along with independent appeal panels, which will become available in May. Those materials will stress the need for panel members to be trained. I take the point made by the noble Lord about the form of information and training that might be useful. It is one that I shall take back to the department to think about. However, it is not enough to provide material and training; it is vitally important to be interactive. We are planning to provide clerks with guidance on arranging workshops to follow up on and reinforce those messages.
I have taken a little time to stress the positive because to discuss exclusion without putting it into context is slightly misleading. I turn now to the regulations and the arguments which have been put forward. As I have said, we are concerned that pupils should be treated fairly and that head teachers are able to apply the law equitably to all pupils. The problem is, frankly, that the Court of Appeal judgment in 2003 made it more difficult, and our instincts were confirmed by the teaching associations. These regulations, which have been challenged, return us to the common-sense standard of proof—the balance of probabilities. As I have said, this concept is, for the first time, firmly within the statutory framework, backed up by guidance, so that everyone is clear how it operates. This should guarantee consistency.
Let me explain why we see it as so important to restore this in terms of the responsibilities upon head teachers. All decisions on exclusions are serious and need to be based on evidence and to be fair and proportional. Head teachers have no formal legal training, but they have long experience of dealing with bad behaviour, and they can distinguish between bad behaviour and criminal behaviour. They know what is serious in terms of the experience of the child and the school. In terms of their own experience, head teachers need to be able to make prompt and fair decisions in response to bad behaviour which warrants removal from the school site. But schools are not courtroom settings. We think it is unreasonable to expect head teachers, governors and independent appeal panels—none of whom has the powers of the police or courts—to apply the criminal standard of proof of "beyond all reasonable doubt" to exclusion cases.
First, head teachers are unable to gather evidence from court witnesses in the way that a court of law can. But they need to be able to make prompt and fair decisions. Secondly, we need to remember that these are head teachers dealing with badly behaved schoolchildren. If they have to apply alternative standards depending on the nature of the incident, anomalies can arise. Good practice over many years supported by guidance has shown that it is relatively simple to exclude a disruptive pupil on the balance of probabilities. A more stringent criminal standard of proof would sometimes mean that a head teacher, even with evidence that would be extremely convincing, would be unable to exclude a pupil who was accused of something much more serious in the context of school life and behaviour. These are the very pupils, regrettably, who sometimes need to be excluded from school for a short or even a long time.
If we had not amended the regulations, we would have left head teachers, governing bodies and appeal panels in a confused and untenable position. They would not be clear whether the judgment applied to permanent exclusions or all exclusions or whether it applied to acts by children of all ages or only those above the age of criminal responsibility.
In summary, it introduced the standard of proof for cases of serious misbehaviour which we sincerely believe, with the support of head teachers, cannot reasonably be expected to apply. In the exclusions context, the balance of probabilities means, as has been said, that to justify exclusion it must be more probable than not that a pupil has done what he or she is suspected of, but this is not a one-dimensional test.
Serious misbehaviour is more rare than trivial misbehaviour, so it is inherently less probable that a pupil has done something serious than something trivial. In the case of serious misbehaviour, this means that a head teacher needs to take account of wider evidence of behaviour patterns and attitudes in general to establish the balance of probability.
So alongside the regulations, we have decided to issue new guidance. Let me assure the noble Lord, Lord Lucas, that we have not been complacent in working out this guidance. Like the 2003 guidance, it reflects the Court of Appeal's judgment in 2000—R v Dunraven School—which applied guidance from the House of Lords Judicial Committee in the case of Re H in 1996. Subsequent cases clarified that by explaining that within the balance of probabilities standard, most serious cases required more evidence. I say to the noble Lord, Lord Shutt, in particular, that our 2004 guidance, which he has quoted, goes beyond the guidance we published in 2003. It advises that the more serious the allegation, the more convincing the evidence needs to be.
The noble Lord, Lord Lucas, spoke about his concern at some length. He feels that it might lead to injustice for some pupils. We do not want our new guidance to leave any teacher in any doubt about how to apply the law. Although the guidance has been published online, we are happy to have yet another look at it and expand further on what establishing the balance of probabilities involves in relation to the nature and the scope of the evidence. I am happy for the noble Lord to have sight of that. I hope that that will reassure both him and the noble Lord, Lord Shutt. When we have done that, the guidance can be amended online and in hard copy.
With those reassurances, I hope that both noble Lords feel that we have not only understood their concerns but have also responded to them in the spirit they want. This has been an extremely useful debate—we have had an opportunity to think again. Taken together, the measures enable head teachers to make decisions on exclusions more simply and fairly.
If the noble Baroness, Lady Seccombe, will excuse me, I will not pursue her reference to the case of Abdul Ali. We certainly take her point and note her concerns about that.
I hope that noble Lords are also convinced that our approach of putting this difficult and sensitive area of exclusion within a very positive context of improving behaviour is the right one. I hope that they will therefore be able to withdraw their Motions.
Lord Lucas (Conservative)
My Lords, I am greatly encouraged by what the noble Baroness has said. There are still some points of disagreement between us, but I think they can be left to work out in time.
Many of these troubles arise from bad procedure and bad behaviour in the process of exclusion. The work that the Government are doing to improve and to continue the education of appeal panels will work back down to heads. No one likes to be overturned on appeal, so heads will also follow the procedures. I think that that was the problem with the Ali case. The governors did not follow the proper procedure, though not in the original exclusion; they did so by continuing the exclusion when there was no longer a case. It should be possible to see much less of that sort of basic, idiotic injustice. I hope that we will see a great deal of gradual and consistent progress.
I absolutely welcome what the noble Baroness said about collecting information on the reason for exclusions. If you know what is happening in a system, it becomes possible to see trends and to focus on what can be done better. Using other routes to support pupils so that they stop short of committing the crimes or doing the things which will cause exclusion must be the right way to go.
I entirely support what my noble friend Lady Seccombe said about the ideal circumstances. That does, however, depend on a basic fairness in the system and on a very good system for picking up pupils who have been excluded and doing other things with them. I can think of several close friends who were expelled one, two or three times in the course of their schooling. That, though, was in independent schools. There is a very strong parental resource in that case—an ability to do something about expulsion. Among good schools there is a recognition that you may have got chucked out for breaking the rules but they will do everything they can to get you into another school on the basis that you will have learned your lesson, or will find a school where the rules are more suited to your particular bent.
We need, as a state, to provide the resources to make up for pupils in state education so that they can find themselves on a constructive path. If that system was on song, it would be thoroughly constructive and would work really well. It would remove a lot of the worries that lie at the base of the concerns that I had—and still have, to some extent—with the regulations. However, the noble Baroness has done enough to assuage my concerns. I beg leave to withdraw the Motion.
Lord Shutt of Greetland (Shadow Minister, Northern Ireland Affairs; Liberal Democrat)
had given notice of his intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on
Lord Shutt of Greetland (Shadow Minister, Northern Ireland Affairs; Liberal Democrat)
My Lords, I thank the noble Baroness for the fulsome response she has given to the debate. I look forward to the further refining of the draft guidance notes that have been produced.