Kevin Brennan (Cardiff West, Labour)
Amendment 37 seeks to clarify the range, funding and use of the fine, or the “financial adjustment” or “financial penalty”—whatever we are going to call it; I think it is a fine—that a school will be required to pay should the review panel consider, in the light of the principles applicable on an application for judicial review, that the decision of the responsible body was flawed. The amendment also probes when such an adjustment may be ordered.
The Minister has given us some idea of the range and size of the possible fine. Organisations such as the Alliance for Inclusive Education have told us of their concerns. The alliance says that the clause
“gives an incentive to schools to consider whether it is more cost effective to exclude the pupil and face a reduction in school budget than to provide for the pupil’s needs within the school”.
It also says that it fears
“this may have a knock-on effect upon other children’s support, which may increase their likelihood of being excluded in the future.”
We therefore need an assurance from the Minister that schools will not be able to use funding intended for other purposes, such as that allocated to a school for special education needs, to pay any such fine and, as we heard earlier, we also need more clarity about what will happen with the pupil premium. I seek assurances that the payment of fines will not be detrimental to disadvantaged children or those with special educational needs.
Will the Minister confirm that it is the local authority that will receive the fine, and explain what will happen to the money when it gets there? Do the Government intend there to be any limits on what the recipient of the fine can do with the money? Do they intend that it should bear a direct relationship to the funding of the education of the excluded pupil?
Finally, my concern is that the Bill gives schools legal powers to act unreasonably, as long as they pay the fine. It says that when the review panel
“considers that the decision of the responsible body was flawed when considered in the light of the principles applicable on an application for judicial review”,
it may quash the decision of the responsible body and direct it to reconsider the matter. The panel may also order an adjustment of the school’s budget share for a funding period. Alternatively, in plain English, the Bill says that where a review panel finds that the decision was unreasonable the school does not have to change its decision and instead can get away with paying a fine. Meanwhile, the child who was found by the review panel to have been excluded by means of a flawed decision remains excluded. The Bill is introducing a funny kind of justice.
The amendment is intended to clarify several different aspects of the implementation and impact of the proposed fine, and to probe whether it was the Minister’s intention to give school head teachers and governing bodies the legal right to act unreasonably as long as they are prepared to pay to do so. Most teachers probably tell their pupils that to act unreasonably is irresponsible, and that is probably right. In the Bill, the head teacher and the governors are referred to as “the responsible body”. So what the clause is doing is allowing “the responsible body” to act irresponsibly. That seems to be the Minister’s intention, albeit with the consequence that the head teacher and governors may have to pay a fine, which of course the Minister is not allowed to call a fine. He has to use the term “financial penalty”, even though the Chambers dictionary defines a fine as:
“an amount of money to be paid as a penalty”.
So we have probably skewered that argument—it is a fine. A “fine” and a “financial penalty” are one and the same thing. Unless the Minister can give me an example of where a “financial penalty” is not a fine and can explain the difference between a “fine” and a “financial penalty”, we should just settle on that nomenclature of “fine” for the remainder of our deliberations on the Bill.