Education Bill

My Lords, I asked for the degrouping because this is already a long group of amendments, which is the nitty-gritty and I hope to cover them. That the clause should stand part is a separate debate, which touches on many of the things that noble Lords have said with regard to previous groups and I shall make no further reference to that now. I put forward this group of amendments very much in a probing spirit. They are not perfect. This is a highly complex clause and I shall seek to explain the point of the amendments in turn. But I am mindful of the fact that, if Clause 13 goes through unamended, it will repose in the teaching profession a privilege unique in English law. As others have said, if this should apply to teachers, why not to many other groups? It is an argument which seems to me to be quite unanswerable. With great respect, I do not think that my noble friend Lord Hill answered it. We have this debate on a very pregnant day. The other place has debated the latest extraordinary events in relation to phone tapping. Partly because of that, and because the public are so agitated about the conduct of certain sections of the press, it becomes doubly incumbent on us to keep a cool head. I suspect that we, more than any other group in the land, understand the absolute indispensability of a free and fearless press to the preservation of democracy, the rule of law and open justice. Furthermore, if we are frank, we will acknowledge that it was just such reporting, particularly, I have to say, on the part of the Telegraph, which exposed the expenses scandal in both Houses of Parliament. For that, we need to be a little humble. I should declare my interests. For a decade, I was a proprietor of a newspaper and a trustee of the Scott Trust, which owns the Guardian, the Observer and a fleet of local papers. For 20 years, I was a governor of state comprehensive schools, one of them as a parent governor. My wife is a former teacher and is presently a governor of a state comprehensive school. I come to this subject with huge respect and sympathy for the teaching profession. I understand exactly what it is on about. I also understand a little about the difficulties of dealing with situations where juveniles are witnesses and complainants. Especially in the early part of my long legal career, I dealt with some of those cases and I understand the quite peculiar difficulties of them. Diving straight into my amendments, many noble Lords will not understand that truth will be no defence against the criminal charge of identifying a teacher, even if he had in fact committed serious criminal offences against one or many pupils. The clause is clear that until and unless a teacher has been charged, which will often follow a long time after an arrest, no individual and no media outlet can say or do anything which would identify that teacher unless the parent, pupil or media have been to court and obtained consent to lift the restrictions. I am bound to say that in my experience the hurdles of going to court and making an application to lift restrictions are simply beyond the scope of a normal pupil or parent, quite apart from the expense of employing a lawyer to undertake that task. The first amendment in this group to which I shall draw attention relates to new Section 141F(12). It defines what a publication is in respect of which a criminal charge can be brought against anyone identifying a teacher. It gives exceptions to publication, saying that an indictment shall not be a publication so as to bring on the prosecution for identification and so on. I have added, in Amendment 73HJ, "““a publication by or on behalf of a registered pupil at a relevant school made to a person or persons affected by the allegation or who otherwise has or have a bona fide interest in receiving the same””." If I am the parent of little Johnny who comes back and says that Mr Smith has been doing this or that and I go to the headmaster and say that this is what little Johnny said, and then nothing happens—let us not kid ourselves, often nothing will happen—surely I must be free to go to other parents in little Johnny’s class and possibly to a wider group than that. If I were to do so, I would then be liable to criminal prosecution under the provisions of this section and that must be utterly daft because it would then be a publication to a section of the public. That phrase ““a section of the public”” has a rather legal meaning and I think I am right in saying that my writing round to, say, 50 other parents in the school would fall foul of that. So that is the first amendment I draw attention to. What needs to be understood is that in some cases no charge will ever be brought, even though there has been a blatant case of assault or sexual interference. The most common reason for that is likely to be lack of sufficient evidence to satisfy the criminal test of beyond reasonable doubt. The younger the pupil, the more vulnerable they are, and the less confident, composed and convincing witnesses they tend to make. The CPS, in deciding whether or not to bring a prosecution, with all the substantial distress that that can bring to the child or young person, or to the witness and their family, will consider that a major factor and, as it thinks that the witness will not stand up, it may simply not prosecute. No charge may ever be brought. There can also be the problem that the evidence is not corroborated. There is also a complication, which I need to spell out. If a charge is never laid, no publicity can ever be made, even if the case is a bad one, unless someone goes to court and gets the restrictions lifted. Another complication is that although allegations are supposed to be recorded, then reported and acted upon—your Lordships have heard about that several times—the temptation on the part of a head to deal with matters informally and quietly can be very strong, especially where the school is going through a rough patch and where further publicity could be devastating for it. In any event, teachers are human and, knowing the consequences to a valued colleague when certain, perhaps lower level, allegations are proceeded with, and if there is a bond between the teacher and the head, the rules are not always strictly followed. Does anyone think that they were in the Catholic schools, where, a few years ago, revelations came far too late to help the many boys who had been abused? The prep school that I had the misfortune to attend was presided over by a predatory, aggressive homosexual who abused boys on a daily and nightly basis for 12 years. Nothing ever came to light, nothing was published and no charge was brought. I will flag up another inadequacy of Clause 13, to which Amendment 73HA refers. Proposed new Section 141F(10) is very important because it gives the circumstances in which the reporting restrictions will be lifted. It states that the restrictions will cease to apply, "““once there are proceedings in a court in respect of the offence””." My amendments will make it clear that proceedings can be in a civil or criminal court, or in a tribunal. Amendment 73HH states that restrictions will be lifted, "““once the person who is the subject of the allegation under subsection (1)””—" the teacher— "““resigns or is dismissed from the employment or engagement””." The point here is that often, at the first sign of exposure, teachers will resign and get the hell out of it. Although of course schools have a duty to take steps in that circumstance, they do not always do so. We should never underestimate the huge pressure on head teachers, the mass of paperwork that will follow in respect of such a case, and so on. That is a very important change to the clause. It will mean that, as soon as a teacher is dismissed or resigns in the face of an allegation, there will no longer be any reporting restriction. I now draw the attention of the Committee, as others have done, to the vital importance of publicity, particularly in local newspapers. I do not refer to gaudy, sensational reports, but simply to reporting of the fact that, for example, Mr Brown has been suspended from X high school in respect of certain allegations—no more than that. That is not allowed under this clause, but not to allow it in the circumstances that I prescribed in Amendment 73HH prevents the very thing that we want; namely that other boys should come forward. Others have made this point, but it needs hammering. You do not get the witnesses that you need in order to bring a charge unless there is publicity. We are in a Catch-22 position. We cannot have publicity until there is a charge, but we will not get a charge until there is publicity. Noble Lords will be glad to know that I am coming to the end. I turn to Amendment 73HB, which refers to new Section 141F(5). This covers people going to the magistrates’ court and saying, ““Look, for these reasons you should lift the reporting restrictions, which are not in the public interest or in the interests of justice””. As my noble friend Lord Black said, the fatal words of the proposed new subsection state that the court will come to its decision in the interests of justice, "““having regard to the welfare of the person who is the subject of the allegation””—" namely the teacher. Why on earth not the pupil? How can it conceivably be right to load the dice in favour of the adult against the young person? It is easy to answer, ““If he is falsely and maliciously accused, that is justice””, but you do not know whether he is falsely and maliciously accused, and you do need to know whether there are others in the town or wherever who have been subject to the same treatment. That is why I tabled the amendment, and I hope that it appeals to the Committee. Finally, I will deal with some small amendments. I referred earlier to new Section 141F(10) that covers the lifting of restrictions. I have added civil and criminal courts and tribunals. I have also done something for the benefit of the teachers, namely replace the word ““offence”” with ““allegation””. It is not an offence until it is proven in a court of law. Until that time, it is an allegation. I think that must be a drafting mistake. I have also put in Amendment 73L to the same effect. There is one more amendment I should refer to: Amendment 73HA which adds to subsection (3) the words, "““unless that person””—" the teacher— "““has put the allegation directly or indirectly into the public domain””," You may ask what mad teacher is going to put into the public domain an allegation against himself. It will not happen often, but it could happen. I am going back to my own experience. The teacher concerned was an extremely competent, aggressive, up-front person, and you will get the odd, strange person who will think that attack is the best means of defence and will get his or her blow in first, so to speak. Unless we have this amendment, it allows such a person to have their cake and eat it and to take advantage of publicity that is not allowed to anyone else. It is for those reasons that I commend the amendments in this group to the Committee.