Fourth Standing Committee
on Delegated Legislation
Monday 10 May 2004
[Mr. Alan Hurst in the Chair]
Education (Pupil Exclusions)
(Miscellaneous Amendments) (England)
Regulations 2004
4.30 pm
Dr. John Pugh (Southport) (LD): I beg to move,
That the Committee has considered the Education (Pupil Exclusions) (Miscellaneous Amendments) (England) Regulations 2004 (S.I. 2004, No. 402.)
We broadly agree with the regulations, which seek to achieve a balance between the rights of the child, the rights of other children and the rights of staff, and to formulate that balance in a very detailed, precise and complex way. I do not need to go into that detail now, as I am sure that civil servants have thought through these very detailed regulations at enormous length in order to deal with most of the problems that can conceivably occur and to strike the correct balance between the rights of the child and the rights of other children to be taught in a civilised environment, and the rights of staff, schools, local education authorities and parents.
I accept that the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations 2002 embodied the need to strike a balance between the legitimate need to keep good order in schools and the requirement on schools to deal with challenging behaviour. It is all too easy for a school to expel any pupil who creates any problem if it has a mind to do so, to the long-term detriment of the educational prospects of some individuals. However, significant changes have been made to the 2002 regulations and to the Education (Amount to Follow Permanently Excluded Pupil) Regulations 1999, on which I would like the Minister to expand. In particular, the 1999 regulations have financial implications, and require certain budgetary adjustments to be made. Will he clarify those adjustments and the reasons why they are thought to be necessary?
Those are minor points. What is crucial is the appreciable change made by the incorporation of extra regulations 7A and 8A, which specifically mention the standard of proof, which is to be the balance of probabilities. Will the Minister explain that? I am not unsympathetic to what he may be trying to do; it is simply not clear. I shall illuminate that point with an anecdote, but first I draw the Committee's attention to a second change, which again seems minor but could have considerable implications.
In regulation 7B, the Minister acquires a right to see information that is received by a local education authority under regulation 4(4) or (5). I believe that the genesis of that right lies in some well-publicised cases of pupil exclusion. I particularly remember a case in which the now Minister for the Arts, then Secretary of State for Education and Skills, was involved,
Column Number: 4
because one day in the House of Commons I received an email from the deputy headmaster of a school at which some pupils had been suspended and reinstated after making death threats to members of staff. He was a former pupil of mine, and sought guidance on how to deal with press inquiries into the expulsions.
There was a feeling that the Secretary of State was becoming involved in a quasi-judicial affair, so there was concern about how the affair would proceed. In the change to the regulations, the Secretary of State has not acquired a role in judicial procedures or in appeals to or from LEAs, nor will he get his hands on the appeal mechanism, but he is acquiring a statutory right to information. What is the point of that? No one would willingly withhold that information; indeed, one assumes that if the Secretary of State had a concern about a particular appeal or exclusion and sought information from a school, that information would willingly be given, but a change to the regulations has been made, and one wonders whether it is a precursor to the Secretary of State playing a part in the procedure and becoming more hands on.
There are three concerns, then. First, there are the budgetary implications of the changes to the 1999 regulations. Secondly, there is the reason—in so far as the Minister can present one—for including new regulations 7A and 8A. Does he perhaps accept that the appeals mechanism is in danger of collapsing because people are, in a sense, taking a judicial, almost wholly legalistic stance towards it? Thirdly, why has he found it necessary to include in the regulations a demand for information when he can get such information all too easily? If there is no hidden agenda, will he stand up and say so?
4.36 pm
Mr. Mark Hoban (Fareham) (Con): I, too, broadly welcome the regulations. They put in place an important duty, which the Government must carry out if they are to support head teachers and provide some clarity about the exclusion process that needs to be in place. In contrast to the hon. Member for Southport (Dr. Pugh), who said that it was all too easy for schools to expel pupils if they set their minds to it, the heads I have talked to find the process, on the whole, far too difficult and time-consuming.
Dr. Pugh: Hansard may prove me wrong tomorrow, but I think I said that it ''can be'' all too easy for schools to do that.
Mr. Hoban: Even ''can be'' does not minimise the stark contrast between the words of the hon. Gentleman and those of many of the heads in schools that I have visited, who have told me that it is hard to implement the process quickly.
The regulations stem from a judgment in the case of R v. Governing Body of YP School, which brought into effect a differential standard of proof in cases involving exclusions. The judgment said that where a child was to be excluded for what would be a criminal offence, the evidential standard required should be that of beyond all reasonable doubt. Previously, the standard of proof was based on the balance of probabilities.
Column Number: 5
The regulations set about restoring the position to that in the previous guidelines, which were in place before the judgment came into force. I welcome that, because since the judgment head teachers have had to labour with two different standards of proof when seeking to expel pupils. It is right that the situation is being reversed to take into account the situation before the judgment.
The regulations also reinstate the findings in R v. Dunraven School, which said that where the offence was more improbable, greater evidence would be required to prove that it had taken place and, therefore, to allow the expulsion.
In that context, I have three sets of questions for the Minister. First, the interim guidance, which reflected the judgment in R v. Governing Body of YP School, was published in July 2003, and the Secondary Heads Association and others expressed concern about how the different standard could be implemented. Why has it taken from July 2003 to early this year to restore the position to what it was before the judgment? Heads have laboured to try to satisfy two different standards of proof when dealing with the expulsion of pupils. How many appeals have there been against exclusions as a consequence of the differential standards of proof?
Secondly, the judgment that led to the regulations was, I believe, a consequence of lawyers trying to apply article 6 of the European convention on human rights to non-criminal cases. Are the Minister's legal advisers confident that the regulations prevent the exclusion process from being challenged again under article 6? It is important that we understand whether the regulations bring about that change.
Thirdly, could the Minister explain what detailed guidance is available to head teachers to enable them to understand how much evidence needs to be collected to support an exclusion, particularly where the alleged incident is serious and could even be a criminal offence? Heads find the process difficult to navigate. I was talking to a head only a fortnight ago who said that it had taken her four terms to make sure that she had exhausted all the procedures and had collected all the evidence that she thought she needed to expel a pupil. She knew from day one of his admission to the school that, based on his record at primary school, he was going to be excluded at some point. That illustrates the fact that the exclusion process is cumbersome and unwieldy for heads, and the regulations will make it easier for heads to exclude pupils where that exclusion is merited.
4.41 pm
The Parliamentary Under-Secretary of State for Education and Skills (Mr. Ivan Lewis): This is an important opportunity for a debate about exclusions and about behaviour in our schools. There is probably consensus in the House that attendance and behaviour are central to the capacity of head teachers and teachers to raise educational standards. The Government are the first to have an integrated approach to supporting schools in the management of attendance, behaviour and discipline. Those are not easy issues. In my view, the media sometimes present
Column Number: 6
them in a frivolous way, but they are serious. They partially concern the issues that schools have to deal with, about family environment and social factors. They are also about the ethos created in individual school environments.
Our most successful schools, even among those that deal with the most challenging circumstances, have an effective approach towards managing discipline and behaviour. That is central to the creation of a positive school ethos. In other schools, the situation is not quite like that. One will often find a direct correlation between behaviour and discipline in a school, and educational performance and the capacity of the school to raise standards. That is one of the answers to the question why some schools in challenging socio-economic circumstances do incredibly well, while others say that they are unable to raise educational attainment because of those challenging circumstances.
We need to have a balanced and sensible approach. We ought to do everything we can to avoid the need to exclude children and young people from schools; we want to avoid that spiral, which leads to truancy and antisocial behaviour. The common characteristic among many young people in the criminal justice system is that they started by being excluded from school. However, we also know that some children exhibit behaviour in the school environment that is unpalatable and unmanageable, disrupts educational opportunities for the vast majority of children and on occasion makes it impossible for teachers to teach. It is right that we ensure an appropriate balance between the two.
A central part of empowering head teachers to manage their schools as they see fit is to ensure that there is a framework of guidance and regulation, appropriately balancing the interests of the individual child with the interests of the wider school community, and allowing teachers to do their job effectively.
| 
