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subject to the discretion and professional judgement of the headteacher..
Amendment 87, in clause 233, page 137, leave out lines 3 and 4.
Amendment 94, in clause 233, page 137, line 7, at end insert
(4A) Guidance issued under subsection (4) must not advise the retention of incident record forms beyond a period of three years..
The clause is another important provision. Amendment 86 would take out lines 36 to 38 on page 136, which actually means removing proposed new section 93A(1)(a), which states that the governing body of a school in England must ensure that a procedure is in place for
recording each significant incident in which a member of the staff uses force on a pupil for whom education is being provided.
The amendment would remove the requirement to record those incidents.
Amendment 210 would simply add a phrase to the end of proposed new section 93A(1)(b). As currently drafted the Bill provides that the governing body must ensure that a procedure is in place for
reporting each use of force incident...to each parent of the pupil as soon as practicable after the incident.
That leaves no discretion for a head teacher or the governing body of a school on reporting an incident to parents. I can understand the purpose of the clause. Of course, if a child is physically restrained at school by a member of staff, a parent has the right to know that has happened. I am aware of incidents in some of my hon. Friends constituencies in which force has been used, but no report was made to the parents of the child, and it caused a massive row when the parents eventually found out. There is thus a case for ensuring that all incidents in which force is used are reported to the parents. Amendment 210 does not change that. It just adds the phrase
subject to the discretion and professional judgement of the headteacher.
The reason for that requirement of discretion is that there may be circumstances in which reporting the use of physical force may cause that child even further problems at home. It may even lead to abuse at home. That was the view of Chris Keates from the National Association of Schoolmasters Union of Women Teachers. In our evidence session on 5 March, he said:
Though it is right to report incidents of this sort to parents, we think it is important that the school has the flexibility to determine how that is done. For example, there could be a child who is at risk of abuse at home, and reporting directly to the parent about an incident might put that child at even further risk of abuse from the family. The school must have the flexibility to say that it would report to the parent but through an agency that might already be dealing with the family, such as social services. So, reporting to parents is the one area where we think clarification would be helpful.
Will the Minister respond to the important point made by Chris Keates about whether some guidance or clarity might be provided to schools? However, I cannot see how guidance could overrule the very explicit provision that the school must report the incident to parents. That was also the view of John Bangs of the National Union of Teachers. He said:
If a head teacher decides not to report a significant incident to a parent because they believe that to do so endangers the child because the parent may take it out physically on that child when that child returns home, you are caught in a bind. Do you seek to protect the child because the incident is over and done withthe restraint has taken placeyet the parent is likely to exacerbate it? We do not know where this has come from and we are concerned about it.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 5 March; c. 88-89, Q221.]
That concern could be quite easily addressed if the Government were to accept amendment 210.
Amendment 87 takes out lines 3 and 4 on page 137, which, in essence, is taking out subsection (3) from proposed new section 93A, which states:
The procedure must require that a record of a use of force incident is made in writing as soon as practicable after the incident.
The proposal is similar to amendment 86, which removes the requirement to record such incidents at all.
Amendment 94 would add guidance to the clause. It says:
Guidance issued under subsection (4) must not advise the retention of incident record forms beyond a period of three years.
Currently the guidance says that any written record of use of force has to be kept for 10 years, which seems an excessively long period to keep a record. For a school to keep records of every incident for 10 years is a large administrative burden.
To ensure that the provisions are justified, it would be helpful for the Minister to explain why existing guidance states that records must be kept for 10 years. Most records are kept for six yearscertainly those for tax purposes. Although the issue is far more serious than tax, I cannot understand why it would be necessary to keep records for such a long time. The concern is that the more administrative burdens that are placed on schools that use powers to maintain order and discipline, the less it is likely that teachers will use those powers. We need to clarify the law, so that there is no risk that teachers inadvertently sway beyond what the law permits.
We need to make the law crisp and clear. We also need to make it simple to administer and functional, which means reducing as far as possible the administrative burdens that can deter a teacher from using powers that are important if a school is to maintain law and order on its premises, which is essential if children are to be happy and safe during their school years. I await the Ministers response with anticipation.
I seek your guidance, Mr. Chope. My reading of the amendments is that they would take out a lot of the substance of the clause, returning policy more or less to where it is now. For that reason I welcome them. Therefore, with your permission, I shall talk to the amendments but not to clause stand part, because I suspect that my comments will be wide.
I am grateful, Mr. Chope. However, the bad news is that I think that this is an extremely important part of the Bill, and one that we might come to regret if we pass the Bill in its existing form. I would like to have a close look at the rationale for the proposals in the Bill and to reflect on some of the evidence that the Committee was given in the evidence sessions. If it cheers up other members of the Committee, although I make no promises not to speak again, this is the last big part of the Bill that I shall have a real rampage across. I hope that Ministers will feel inspired by that.
Although some of us on the Government Benches thought earlier that the hon. Gentleman was going on a bitsometimes, we felt, almost deliberatelyit would come as a source of considerable disappointment to many of us if he curtailed his remarks on the rest of the Bill. The hon. Gentleman has enlightened us.
I am cheered. I was saddened when the Minister implied yesterday that I was filibustering. He needs to speak to his right hon. Friend the Minister for Schools and Learners, who would tell him that is the normal length of my speeches on such occasions. In fact, I thought that I was being rather brief, given the time of night.
If the length of time that the hon. Gentleman was speaking last night is a normal amount, but he is having a full rampage now, would he be able to give us a rough idea of how long that might take?
The hon. Lady is safe to go for a cup of coffee, if that is what her question is about.
The clause is an important part of the Bill. The whole issue is whether guidance that already exists for recording incidents of the use of force should be made obligatory and a statutory duty on the school. We took a lot of evidence about that during the Committee proceedings when we took evidence from the teaching unions. The hon. Member for Bognor Regis and Littlehampton, with typical fairness, acknowledged that one of the teaching unions, the NASUWT, was broadly supportive of the power, with some concerns and reservations. However, the two other teaching unions from which we took evidencethe NUT and the Association of School and College Leadersprovided powerful evidence that supported the views that I had come to in any case, which are very similar to those of the hon. Gentleman. Those views are that the provision is not necessary and will be counter-productive.
We had a debate about a particular case, on which I invited the leaders of the three big unions to comment. We were talking about a situation in which a teacher, seeing a fight between two students in the playground, had to decide not only whether to intervene to break it up, but, if the fight had to be broken up with the use of force that was mild but caused one of the pupils to fall over and marginally scrape his or her elbow on the ground, whether that would be regarded as significant enough to have to be recordedsignificant enough for all the paperwork to have to be filled in. The Government impact assessment estimates that it will take 20 minutes on average to do that work and that there will be a cost of £9.22 per school per day for the cases that may have to be taken up.
Not only will the incident have to be recorded as a statutory duty even when there are considerable doubts about whether it was a significant event, but the school will have to write to the parents of the child against whom force was usedI do not know whether that means both the child who was pushed slightly and the child who happened to fall overto notify them of that. That is not only unnecessary and incredibly bureaucratic, but quite dangerous, because it is likely to stimulate many complaints from parents, who probably will be receiving letters about incidents of a quite minor nature. At the moment, those parents would not be notified, but in the future, if this becomes statutory, there will be much greater pressure on staff to notify.
I contrast the excessive regulation in this case with the quite sensible comments that the Minister made a few minutes ago about the need not to be over-bureaucratic with schools when it comes to the confiscation of items and their return to people from whom they may have been stolen, or the disposal of small amounts of drugs.
As well as the evidence that we took in Committee, there is an interesting paperthe Government impact assessmentthat discusses in commendably concise terms the proposals in the clause. On pages 148 and 149, that assessment goes through the reasons why the proposals make sensewhy it makes sense to move from guidance to a statutory dutyand it talks about the benefits to three groups of people. We need to consider whether those benefits are real or whether there is not a degree of living in a parallel universe where the statements and claims that have been made just do not ring true.
The first benefit from the changes is supposed to be this:
Pupils will feel safer in schools knowing that they and their fellow pupils will only be restrained by use of force as is reasonable in the circumstances to prevent a pupil from doing, or continuing to do, any of the following.
The assessment then lists the relevant actions.
I would be staggered if any pupil felt any safer after the Bill came into being, because it is already the case that any responsible member of staff would properly police incidents in schools in which there was ill-discipline. They would break up fights. They already have clear statutory guidance in that regard. It is not remotely likely that pupils will feel safer.
In fact, pupils might feel considerably less safe, and I shall explain why. If I were a teacher, were on one side of the playground, saw a particularly ferocious fight between two 15 or 16-year-old students and had to decide whether to sprint over to the other side of the playground and break that fight up, I would be no more inclined and perhaps less inclined to do soI hope that the professional teachers would be equally inclined, and no doubt they would beif I knew that if I broke up that fight and used what might be regarded as significant force, I would have to write all that down. I would be less inclined to do it if I knew that I would have to take, on the Governments own estimate, 20 minutesthe cost would be £9.22to fill out some forms to specify what I had done in case someone challenged whether I had used force in a significant way.
I would also be very worried about the process of having to write to the parents of those children to notify them that I had taken that action. What possible response could there be from parents to a formal letter or a telephone call from a school to notify them that a teacher had had to use significant force or restraint against their child? I would hope that the more responsible among them might support the teachers and head teachers but I fear that there are quite a few parents out there who instinctively take the side of the child against the school. They have had bad experiences at school themselves and are inclined to regard teachers and head teachers as threats, rather than as people who are on their side. I fear that this will lead to many more instances of parents making complaints to schools and pursuing these matters in a way that would cause an enormous amount of bureaucracy.
We are told that parents might feel more confident knowing that they would be contacted if their child had been restrained at school. This is the only area that I can see where there could be any benefit from the measure. My hon. Friend the Member for Mid-Dorset and North Poole raised the issue in the evidence session. That type of intervention may be more frequent with special needs youngsters, and if such interventions are being made, there should be a greater degree of responsibility on the school to ensure that the parents know about it.
It may well be that action should be being taken and it probably is being taken. However, the provision should ensure that these types of problems are being dealt with. Even then I am not necessarily sure that it outweighs the other costs and whether in some of the more marginal cases parents would want to be notified in that way. Concerns would be raised in a way that led them to believe they were extremely serious when actually the incident may not be serious at all.
The other group, the staff, who are supposed to be the great beneficiaries of this, are almost inevitably losers, too. The impact assessment says:
Staff will benefit because there is a written record with witnesses and justification of the use of force. It should also help to improve the relationship between school and parents as there will be seen to be a more open flow of information, with a proper system of recording incidents of staff restraining or otherwise physically interacting with pupils.
It goes on to list a series of supposed benefits to staff: legal protection will be offered to staff in cases where a parent seeks to prosecute; and school staff will be less likely to refrain from physical contact for fear of malicious allegations against them. That is frankly the complete opposite of the conclusion that many people, including me, would draw from the changes.
The proposals will make the position no better for pupils; possibly they will make it more dangerous. The benefits for parents are ambiguous except in the case of special needs youngsters. I would imagine that the number of cases where they are not notified of the behaviour of their children is relatively small. Certainly for staff this provision will make the situation much worse. There will be much more bureaucracy and much more reticence to intervene in such cases.
Interestingly, the regulatory impact assessment is unable to come up with any estimates in the aggregate, either of the costs or the benefits of the project. It states:
The majority of schools are already recording and reporting significant incidents where use of force has been used and reporting them to parents.
In other wordsthe point was made by a number of people in evidence to uswhere this needs to happen the guidance is already having force. The risk is that in making these duties statutory we will extend them in ways that are completely unwelcome. That is presumably why the Committee has received so much critical evidence on the subject. A number of representations have been made by the NUT and there was a powerful representation from John Dunford, one of the most experienced and wise leaders in the education field. He said:
On the use of force, we are clear that if there is a major use of force then that is something the school would wish to communicate about with a parent, and schools already do that. If, on the other hand, a teacher goes into the playground to break up a fight and does so, we do not want to get into a position where that kind of thing has to be reported to parentswe should just deal with it and get on with life. It might be on the face of the Bill or it might be in guidance, but we want to make it clear that that duty relates only to significant use of force...Otherwise, frankly, we would not want another legal duty in this area.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 5 March 2009; c. 87, Q221.]
The hon. Member for Bognor Regis and Littlehampton also cited John Bangs, who has enormous experience in education and is a very respected and senior member of the NUT. John Bangs also gave powerful evidence on the issue:
We are concerned about the recording of incidents of force to control or restrain pupils. We do not know where this has come from. We advise in all our behaviour guidance that incidents should be recorded for the protection of teachers. I do not think that any other union would take a different view. I am sure that we all take that decision.
Later in the same evidence session, John Bangs, who has a lot of experience in this area, referred to his own time in teaching:
I taught in a special school for 18 years. It was a secondary school for moderate learning difficulties. It was a proxy for mild emotional, behavioural difficulties. To prevent a child from running out of the classroom door, you had to physically intervene. Did I have to record that every time? No, because that was the nature of the children in the school. The school had a restraint policy, which was understood consistently. We also had a policy about intervening to help other members of staff, not in terms of force, but behaviour.
The danger with putting this into legislation and then identifying what is significant is that the normal relationships that you have, particularly with tough pupils, will be undermined because you constantly have to check back to see whether you have to record it. As John said that is, John Dunford
there has to be professional judgment in the context of the behaviour and restraint policy of the school.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 5 March 2009; c. 88-91, Q221 and 226.]
I believe that that is absolutely right and that the judgment of the NUT and the ASCL is right in relation to these matters.
Therefore, we should think twice before we land schools with a great new bureaucracy that will make pupils less safe, create more burdens on staff and make them more reluctant to intervene, and that will have only an ambiguous benefit, if it has any benefit at all, for parents. I must say that the amendments tabled by the hon. Member for Bognor Regis and Littlehampton on these matters are exactly right and deal with all the deficiencies that have been identified in the evidence that has been given to the Committee.
Currently schools have powers to use reasonable and proportionate force either to control or restrain pupils, in order to prevent an offence being committed, injury or damage being caused or serious disruption to school discipline being created. However, what the law does not currently require is that significant incidents of force be recorded or reported to parents.
That is a gap in the current arrangements, which was highlighted in a case in late 2006-07; it may be the case that the hon. Member for Bognor Regis and Littlehampton, who speaks for the Conservatives, was referring to. It involved a young girl with special educational needs who had been repeatedly restrained in school without the parent being informed. Although the schools actions in restraining the child were found to be reasonable, some hon. Members rightly expressed concern at the lack of a requirement to record and report such actions to parents. Therefore, the Government committed to closing that loophole.
Most schools already record incidents of force and many of them make reports to parents. Both these practices are recommended as good practice in the Departments guidance to schools on the use of force. The clause consolidates that good practice. As a further safeguard, the clause requires schools to have regard to the section of the guidance on the recording and reporting of significant incidents. We are revising our guidance. I think that the key point to remember is the word significant, which is the point that the hon. Member for Yeovil made when referring to John Dunfords evidence. Our revised guidance will make it clear what the new legal duties on schools regarding the recording and reporting to parents will mean in practical terms and we will, of course, be consulting on that guidance.
Ensuring that there is a proper written record will protect the interests not only of pupils and parents but of staff, meaning that disputes about the veracity of events can be minimised. It will make it less likely that school staff will refrain from physical contact for fear of a mischievous allegation against them. Furthermore, we do not envisage that recording an individual incident should add a significant administrative burden. The guidance to schools includes a one-page model form for recording incidents, which should be fairly easy for schools to complete. That section of the guidance also draws attention to wider issues around pupil safeguarding and the circumstances when a school might need to involve other agencies.
I appreciate that hon. Members are concerned to limit the requirements placed on schools, but there are important reasons why clause 233 is framed in the way it is. I am sure that I do not need to remind hon. Members that the most important reason is child protection. I will first speak to amendments 86 and 87. The recording of each significant incident of use of force and keeping an accurate record will protect both the pupils and the teachers involved. The circumstances leading up to and surrounding incidents of use of force are often confusing and emotive, and it is important that a contemporary, clear and honest report is made of such an incident so that the appropriate facts and time scales can be accurately recorded when they are still fresh in the mind. Many schools have already implemented mechanisms for recording and reporting incidents of use of force. The clause merely reinforces existing good practice and should impose little additional burden on schools.
On amendment 210, I recognise that the requirement to report each use of force incident might in a small minority of cases provoke an inappropriate violent reaction from parents. However, that risk needs to be weighed against the risk of keeping parents in the dark on such a serious matter as their child being restrained. The clause properly requires a procedure that ensures parents are always informed as soon as possible of significant incidents where force has been used on their child. It enables prompt action to be taken and helps to stop problems escalating.
When giving evidence earlier in our deliberations, Sir Alan Steer made it clear that he did not agree with withholding a report from parents. He said:
If there has been an incident involving my child which has required restraint to be used, I would be fairly militant about the fact that I, as a parent, needed to know that. I accept that the example you gave could occur on rare occasions, but there are ways around that.[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 5 March 2009; c. 108, Q252.]
I have listened carefully to the Minister. She has made a compelling case for why parents need to be informed automatically, but there is also a compelling case in the small minority of cases that she refers to where the consequence of reporting the incident could be very serious for the childextremely serious. Is there not a compromise that can be reached where there is an automatic process for reporting? If a head teacher has concerns, could the reporting be made to someone in the social services department who may or may not know the parent? If they know the parent, that is dealt with. That could count as telling the parent. If they do not know the parent, it could trigger a case conference and initial inquiries to see whether it would be safe to tell the parent. In such circumstances, the child would be protected. It would be a pity if we passed the legislation and as a direct consequence a child dies.
The hon. Gentleman has anticipated my next remark. The requirement to inform parents is also subject to wider requirements to safeguard children, and the report to a parent need not come directly from the school. It could in some instances come through social services. Where a school is particularly concerned about a child protection issue, they should always bring in other support agencies. I think that that gives the hon. Gentleman the reassurance he needs. I referred previously to an incident a few years ago involving a six-year-old girl with special educational needs. That example alone shows the importance of reporting incidents to parents.
It is good to hear what the Minister has said, but my worry is that it is not in the Bill and would therefore not be on the statute book. I wonder what she has in mind. Obviously, there is a wider requirement to protect children in common law, and undoubtedly in statute somewhere, but it is not in this piece of legislation. Our concern is that a teacher or a lawyer looking at this will advise that the teacher or head teacher has to tell the parent, and there seems to be no leeway within the provision as regards telling the parent.
The legislation states:
The governing body...must ensure that a procedure is in place.
There will be guidance that backs that up. Our revised guidance will make it clear what it means in practical terms, given that there are the general obligations under the Children Act 1989 and the wider requirements to safeguard children. I am happy to confirm that we expect to put in that guidance the incidents in the particular cases that the hon. Gentleman refers to.
On amendment 94, our general position is not to specify a time scale for how long pupil documentation should be kept. The current pupil information regulations, which cover the range of information that schools keep on their pupils and which we are considering revising, do not set such a time scale. Similarly, our current guidance on use of force does not specify a time scale for keeping records, as we believe that such decisions are best taken locally.
The exception is where a record has been handed to the police. Our guidance recommends that in those circumstances, schools should retain the record until the member of staff involved has reached normal retirement age or for 10 years from the date of the allegation, in order to ensure that a proper record is retained in case criminal or other proceedings arise from the incident. We propose that the new overarching guidance on the use of force that we will issue to follow the Bill should continue to reflect that approach.
I recognise concerns that the record of an incident passed to the police for whatever reason may appear on a subsequent Criminal Records Bureau check, but if a teacher has misused the power and acted unlawfully, it is right that that should form part of their CRB disclosure. In deciding how long to keep records of such incidents, schools will also wish to bear in mind the time limits for bringing civil actions for damages. Where a person under 18 has suffered injury, the limitation period does not even begin to run until they reach the age of 18, so if schools destroy records three years after an incident, they may face difficulties if a claim is made subsequently.
In any case, schools will wish to maintain accurate records of their pupils progress for at least as long as they remain in education, and the use of force record is likely to be considered by most schools as forming part of that record. Schools may wish, for example, to monitor patterns of use of force over a number of years. They must be left to make their own decisions about how long to keep records of use of force. Many schools will have good reason to want to keep the records for longer than three years. With that, I ask the hon. Gentleman to withdraw the amendment.
I am grateful to the Minister for that full response to the amendments, which raise serious issues. I am not totally convinced that it will work. She is saying that primary legislation is trumped by revised guidance, whose status is even less than that of statutory instruments. I worry that we are relying on guidance to provide a different interpretation of explicit legislation in new circumstances. It will work if the guidance is read, the school is well run, its staff have the guidance in front of them and all the teachers are aware of it. The concern is that that will not happen.
Does the hon. Gentleman not agree that proposed new section 85D(4) says:
In discharging their duty under subsection (1), the governing body must have regard to any guidance issued?
Yes, I do, but the trouble is that people are not lawyers out there. Teachers are teachers, bursars are bursars and head teachers are head teachers. This way may look easier because we are spending a lot of time ploughing through the Bill clause by clause, but it is just one Bill among many to which teachers must have access. Guidance is recommended in most clauses of education Bills.
The reality is that teachers do not sit at their desks with neatly filed guidance connected to each provision in legislation. A poor lawyer, or even an average lawyer, might not spot this point. Indeed, a teacher might not even ask a lawyer; they will work out in advance what they can and cannot do. A barrack-room lawyer view might arise that if a serious incident occurs involving physical restraint of a child, the parent must be told, and a jobsworth view might well emanate that it is better to do so regardless of the consequences.
The hon. Lady might be right. The matter might be so serious that head teachers will be cognisant of the guidance because the consequences of not knowing about it are so tremendous. However, the worry is that that might not happen. We should be legislating to produce the best possible piece of legislation. As the matter is serious, I cannot understand why it is not being put into the Bill, just in case what I am saying is right. Given that I am not the only onesenior trade unionists are saying it tooI wish that she would think again. I leave her with this thought. Rather than pressing the amendment to a Division, I urge her to give the issue a little thought between now and Report and to come back on Report with a small amendment, which we will endeavour to give a swift journey on to the statute book. With that in mind, I beg to ask leave to withdraw the amendment.