POWER OF MEMBERS OF STAFF TO RESTRAIN PUPILS (Hansard, 27 January 1997)

HC Deb 27 January 1997 vol 289 cc79-87 79

§ '. After section 550 of the Education Act 1996 there shall be inserted—

§ "Power to restrain pupils

§ Power of members of staff to restrain pupils

§ 550A.—

(1) A member of the staff of a school may use, in relation to any pupil at the school, such force as is reasonable in the circumstances for the purpose of preventing the pupil from doing (or continuing to do) any of the following, namely—
1. (a) committing any offence,
2. (b) causing personal injury to, or damage to the property of, any person (including the pupil himself), or
3. (c) engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school or among any of its pupils, whether that behaviour occurs during a teaching session or otherwise.
(2) Subsection (1) applies where a member of the staff of a school is—
1. (a) on the premises of the school, or
2. (b) elsewhere at a time when, as a member of its staff, he has lawful control or charge of the pupil concerned;
but it does not authorise anything to be done in relation to a pupil which constitutes the giving of corporal punishment within the meaning of section 548.
(3) Subsection (1) shall not be taken to prevent any person from relying on any defence available to him otherwise than by virtue of this section.
(4) In this section—
- "member of the staff, in relation to a school, means any teacher who works at the school and any other person who, with the authority of the head teacher, has lawful control or charge of pupils at the school;
- "offence" includes anything that would be an offence but for the operation of any presumption that a person under a particular age is incapable of committing an offence.".'.—[Mr. Forth.]

§ Brought up, and read the First time.

§ Mr. Forth
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker
With this, it will be convenient to discuss Government amendments Nos. 12 and 40.

§ Mr. Forth
The new clause is intended to help teachers. I hope that hon. Members on both sides of the House will welcome it, as the teachers' unions have. It will codify and clarify teachers' powers to restrain disruptive pupils. [Interruption.]

§ Mr. Deputy Speaker
Order. Will hon. Members leaving the Chamber please leave quietly, and will those remaining please give the Minister a fair hearing?

§ Mr. Forth
Teachers and other staff authorised by the head teacher will have the—

§ Mr. James Pawsey (Rugby and Kenilworth)
Will my hon. Friend help me and other hon. Members? Does the new clause have any implications for any new clauses, which we may debate later, that relate specifically to corporal punishment?

§ Mr. Forth
My hon. Friend will be aware that the wording of part of the new clause bears directly on the point that he has raised. To help my hon. Friend, I shall quote the new clause. It says that the clause does not authorise anything to be done in relation to a pupil which constitutes the giving of corporal punishment within the meaning of section 548. My hon. Friend will agree that, in framing this important provision, which has the support of teachers and their unions, we have been conscious of the fact that others see such matters from a different perspective and might have shared my hon. Friend's worry that it might overlap with any possible provisions for corporal punishment. That is why—I hope that my hon. Friend accepts the validity of this—we have taken the trouble to put into the new clause a specific form of words to clarify beyond doubt the fact that the ability of a teacher to use reasonable restraint in 81 trying to keep order in the classroom cannot and will not be construed as giving any sort of authority for the reintroduction of corporal punishment.

§ Mr. Pawsey
My hon. Friend might acknowledge that there is a fine line between restraint—preventing a pupil from hurting or injuring another pupil—and the use of corporal punishment. It might be construed that corporal punishment is being used in restraining a child. That is a fine point. I should be grateful if my hon. Friend could spend a little time—for my benefit if for no one else's—explaining the distinction.

§ Mr. Forth
I understand my hon. Friend's point, which is important. He will remember that, in Committee—I think that it was when we were debating his new clause—similar points were raised about the confusion that might arise in the definition of corporal punishment. I understand why my hon. Friend is bringing a similar argument to bear on the possible definitional problems that might exist on restraint in the classroom. I have two reassurances for him, which I hope he will accept. First, there will inevitably be guidelines which, after due consultation, my Department will issue the better to give guidance to teachers, heads and others on how to interpret the clause and to put the issue beyond doubt. Secondly, any reasonable person reading the new clause, knowing its context, and understanding the motivation behind it, would have difficulty confusing reasonable restraint by a teacher with the administration of corporal punishment. I accept that my hon. Friend's argument might apply in extreme cases, but I doubt whether they would arise.

§ Mr. Pawsey
I apologise for continuing to interrupt my hon. Friend's speech. I understand that he is developing the theme. Does he intend to refer to the European perspective? He will know that there have been some erroneous claims that the European Court has ruled against the United Kingdom on the use of corporal punishment in schools.

§ Mr. Forth
indicated assent.

§ Mr. Pawsey
Clearly my hon. Friend agrees that those claims are erroneous. Will he confirm that the new clause does not fall foul of the European Court of Justice?

§ Mr. Forth
I am confident that there is no danger of our falling foul of the European Court of Human Rights on this because the measure is designed not only to protect teachers—rightly—against what are often said to be unfair and unfounded accusations, but to protect pupils. It will apply when a teacher restrains a pupil who may be fighting or in conflict with another. One of the important motivations behind the new clause—I am glad that my hon. Friend has given me the opportunity to explain this—is to provide additional protection to pupils. At a cursory reading, it may seem to be all about protecting teachers, but my hon. Friend, with his enormous knowledge and understanding of such matters, will know that one of the other purposes of the new clause is to provide real protection to pupils. We are giving teachers the power to restrain pupils who are harming one another—or even, as might occasionally happen, harming themselves—or causing disruption in the classroom.
82 Existing common law principles allow teachers to take reasonable steps to restrain seriously disruptive pupils, but many people seem not to understand that, perhaps because those principles are derived from 19th century case law.

§ Mr. Pawsey
I am following my hon. Friend's argument closely. When a teacher intervenes in a classroom brawl or, more likely, a playground brawl, is there a risk of that teacher falling foul of insurance provision? Can my hon. Friend assure me that there will be adequate insurance for teachers, and that any teacher who might be injured as a result of intervening in some disagreement between pupils will be covered by terms of insurance?

7.30 pm

§ Mr. Forth
My hon. Friend has raised an interesting and relevant point; I should like to take further advice on it. My initial reaction is that I do not believe that the new clause would materially affect the position either of teachers or of schools. Ever cautious, however, about giving an off-the-cuff response to an important and substantive point, I should like, if my hon. Friend will allow me, to consider the point and let him know my conclusions. I am, however, fairly confident that the advice I am giving is sound.

§ Mr. Nick Hawkins (Blackpool, South)
My right hon. Friend may be aware that I and a number of other hon. Members, including my hon. Friend the Member for Erith and Crayford (Mr. Evennett), have explored insurance in some detail. Does my right hon. Friend agree that the position of the teaching unions is significant in this regard? It is clear to all my hon. Friends that many teachers join the teaching unions when they first qualify simply to get insurance. Their membership is then regarded by the often militant political leadership of those unions as in some way being support for their political policies. Does my right hon. Friend agree that it would be a good thing if insurance cover was separate from union membership—

§ Mr. Deputy Speaker
Order. Before the Minister replies, I must remind all hon. Members that interventions are supposed to be brief and to the point. We seem to be straying away from the new clause.

§ Mr. Forth
With your permission, Mr. Deputy Speaker, I should like to say to my hon. Friend the Member for Blackpool, South (Mr. Hawkins) that he makes an interesting point which should, perhaps, be pursued. Many, however, would say that it is unlikely that people as perceptive and worldly wise as teachers would sign up to something as important as a trade union for something in a sense as trivial as the obtaining of insurance cover. Were that to be the case, it could give rise to some rather worrying aspects. The matter should, perhaps, be pursued but not necessarily within the confines of our debate on the new clause.
There have been cases of teachers being investigated by social services departments or the police for trivial instances of restraint of pupils. That is absurd and it is one of the main reasons why we tabled the new clause.

§ Mr. Pawsey
I apologise to my right hon. Friend for failing to congratulate him on the signal honour he has 83 received. I am sure that all Conservative Members join me in warmly welcoming his membership of the Privy Council.
I draw my right hon. Friend's attention to proposed subsection (1)(c), which refers to engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school". My right hon. Friend will recall that our right hon. Friend the Prime Minister recently referred to the cadet corps in schools. Does he believe that the phrase I quoted has some significance to school cadets?

§ Mr. Forth
I am sure that my hon. Friend agrees that the view that our right hon. Friend the Prime Minister and other colleagues have taken is that the development of the ethos that exists in the cadet corps can be a force for good only if it is offered to more and more pupils in schools for the good reason, which my hon. Friend and other Conservative Members well understand, that the team spirit and self-discipline that exist in the cadet corps sit comfortably with the objectives of the new clause. My hon. Friend makes a good and effective point.

§ Mr. Hawkins
I join in the congratulations that have already been given to my right hon. Friend on his membership of the Privy Council. Does he agree that one of the interesting things about the way in which the recent suggestion about voluntary service in the cadet force has been portrayed is that the leaders of the teaching unions have deliberately misrepresented it as a plan to make cadet service compulsory? The whole point is that our right hon. Friend the Prime Minister was talking about voluntary service. There was deliberate misconstruction which the media—

§ Mr. Deputy Speaker
Order. I have already drawn it to the attention of hon. Members, especially the hon. Member for Blackpool, South (Mr. Hawkins) that interventions are supposed to be brief and to the point. I do not know whether the hon. Gentleman heard me; I made that point only a couple of seconds ago, and my voice has not gone at all.

§ Mr. Forth
Regrettably, my hon. Friend the Member for Blackpool, South is right. We find so often that misinformation is spread, often deliberately, by people who wish to misrepresent what the Government intend to do. In that way, they spread unnecessary fears among teachers and, occasionally, among parents. Surely we all understand that membership of the cadet corps has always been voluntary and will continue to be so. We are saying that membership should be encouraged.

§ Mr. Kilfoyle
Does the Minister accept that there is virtually no disagreement about the new clause? Does he also accept that his hon. Friends do not need to filibuster? 84 Will he accept the Opposition's advice, and let us get on with the more substantive points of difference between the two sides of the House?

§ Mr. Pawsey
On a point of order, Mr. Deputy Speaker. Is it in order for the hon. Member for Liverpool, Walton (Mr. Kilfoyle) to suggest that Conservative Members are filibustering when we are—

§ Mr. Deputy Speaker
Order. If the Chair had thought that there was filibustering or tedious repetition, the Chair would have intervened. So far, the debate has been in order.

§ Mr. Forth
I hope that, in the same spirit in which the hon. Member for Liverpool, Walton (Mr. Kilfoyle) was able to accept the brevity of the previous debate, he will allow that the House occasionally wishes to explore in a little more detail the provisions of a rather more complicated new clause. In deference to his request, however, I shall try to make progress.
I was arguing, was I not, that there had been cases of teachers being investigated by social services departments and the police. There has been at least one well-publicised case of a teacher being arrested after intervening to break up a playground fight. That cannot be right. Teachers and appropriate other staff in schools, such as lunchtime supervisors, should be allowed, without fear of prosecution, to use moderate physical restraint where it is necessary to stop pupils fighting. Occasionally, where a pupil is damaging school property or indulging in persistent, defiant disruption which is causing a complete breakdown in good order and discipline in the classroom, there may be nothing for it but for the teacher to lead that pupil away by the arm even though the pupil is not necessarily causing injury to himself or others, or would not be guilty of an offence because he is under the age of criminal responsibility.
Keeping discipline is a key part of a teacher's responsibilities. The teachers' unique position with regard to the youngsters in their charge and the classroom environment justifies setting out in a single statutory provision that they may lawfully use reasonable force in certain closely specified circumstances. I stress again that that has nothing to do with corporal punishment, which remains largely illegal. Prevention and punishment are two very different things.
I also emphasise that where a teacher has to restrain a pupil, he or she may use only such force as is reasonable in the circumstances. Ultimately, of course, it will be for the courts to determine what constitutes reasonable force, but I expect that a court would decide that the new clause would not authorise the use of force to restrain a pupil from committing trivial misdemeanours. Force should be used only as a last resort to prevent seriously bad behaviour and, in any event, any force used should be proportionate to the misbehaviour. My Department will issue detailed guidance on the use of physical restraint after consulting the relevant interests. I am sure that Opposition Members and my hon. Friends would expect no less of the Department.

§ Mr. David Jamieson (Plymouth, Devonport)
Can the Minister clarify a point? As one who has pulled apart warring pupils on many occasions, I thought that it was 85 within the law at the moment that reasonable force could be used to restrain a child who was doing damage to himself or someone else. Would it be deemed a serious misdemeanour if a child was not trying to inflict damage on someone else or on property, but was trying to leave the room without the teacher's permission? Could that be deemed an occasion on which such restraint could be used?

§ Mr. Forth
The hon. Gentleman may—inadvertently, I am sure—be trying to draw me into a matter of detail, albeit an important detail, in advance of the consultation that we want to conduct before we issue guidance. My initial reaction is that an incident such as he describes would probably be more of a disciplinary matter than one that justified the sort of restraint that we are discussing in the new clause. That point probably illustrates better than any other the fact that all reasonable people, especially teachers in the classroom, can readily identify the cases that require this exceptional restraint to be used and the great majority of cases in which there would be no question of its being used.

§ Mr. Jamieson
I am grateful to the Minister for clarifying that point. I raised it because I believe that the cases that have been investigated are more to do with the teacher using restraint because a child has disobeyed an order than preventing a child doing damage to themselves or property. It would be helpful if that matter was clarified because, as the Minister will appreciate, there is a great difference between that type of incident and others. In my view, the only circumstance in which a teacher should use that type of restraint is when there is immediate danger to the child, some other person, or property.

§ Mr. Forth
I am sure that the guidance, when it is issued after consultation, will reflect that point, although I hope that the hon. Gentleman agrees that there is always a limit to the extent to which guidance issued in good faith from my Department can, or should seek to, detail every conceivable circumstance that might arise in the classroom. A balance has to be struck between giving teachers reasonable guidance, reassurance and examples of best practice, and seeking to set out in black and white every conceivable circumstance that might arise and what can be done in black and white. However, I accept the spirit of the hon. Gentleman's point and I am sure that we will endeavour to ensure that the guidance that will follow consultation, should the new clause be accepted by the House, will strike that balance.
The new clause would introduce a special provision for teachers, and it should have no effect on the ability of other professional groups, or indeed the public, to rely on defences currently available under the general law when they are prosecuted or sued for damages for assault.
Amendments Nos. 12 and 40 simply insert the new clause in the Education Act 1996 immediately after the sections concerning corporal punishment and before the new clause concerning detention. I hope that I have been able to satisfy the House, including my hon. Friends, about the intention behind the new clause. The Opposition spokesman has indicated his general support and I hope that the House will also be able to support the new clause.

§ Mr. Kilfoyle
I wish only that the Minister had been as willing to consider the consequences of the defeat of 86 new clause 3 as he was to debate the consequences of new clause 4 for new clause 5, tabled by the hon. Member for Rugby and Kenilworth (Mr. Pawsey). They went on ad nauseam about that, but the Minister does not appear to have an opinion on the effect on the Bill of the elimination of new clause 3. Nevertheless, the Minister is correct to say that there is agreement; the broad intention of new clause 4 is both welcome and unproblematic for the Opposition. It seeks to place on the statute book what is in effect the common law.
The Secretary of State clearly recognises—as, I know, does the Minister—the importance of teachers and others placed in charge of pupils having a measure of protection against physical attacks by pupils, from accusations by parents and from mischievous claims of assault. While fully acknowledging the importance of protecting children from abuse, authorities such as the Council of Local Education Authorities and others have recently undertaken work with a range of other agencies, including the teachers' associations, to develop guidelines on practice and procedures for head teachers and teachers involved in allegations of sexual or physical abuse. The intention of the Secretary of State in tabling the new clause appears to be in broadly the same spirit.

7.45 pm

§ Mr. Pawsey
I am not seeking to be mischievous, but does the hon. Gentleman agree that if better discipline were maintained in the nation's classrooms, there would be less risk of fighting in playgrounds and therefore less risk to teachers intervening in fights?

§ Mr. Kilfoyle
That is self-evident, but I posit the question that I put to the hon. Member in Committee: does he see the distinction between discipline, which is interiorised, and order, which is imposed? That question goes to the core of the quality of teaching, parenting and many other issues.
Notwithstanding the apparently helpful intentions of the Secretary of State, there may be grounds for the expression of some caution in respect of the proposed subsection (1)(c)—which the Minister mentioned—because it is broadly worded. The hon. Member for Rugby and Kenilworth also intervened on the point. Proposed subsections (1)(a) and (b) are more specifically defined, but I wish to seek reassurance that the phrase engaging in any behaviour prejudicial to the maintenance of good order and discipline at the school will not generate a loophole that sanctions the use of physical restraint in circumstances that require some other, more appropriate, action from a teacher to diffuse the tension of a potential disciplinary or behavioural problem. For example, if two pupils were engaged in a disruptive verbal dispute, might proposed subsection (1)(c) legitimise the hasty use of physical force to place them at a distance from each other when a verbal reprimand or use of the detention would be sufficient?
I hope that the Minister will expand on his earlier comments and clarify the issue I have raised. I also hope that his assurance on the matter will be covered by the guidelines that will emerge from the consultations that he announced. The Minister announced so many consultations in Committee that he earned the nickname of the Minister for consultations, but the vital point about 87 consultation is that the Government should take notice of the conclusions of consultations and apply them when they draft legislation or set out guidelines.

§ Mr. Forth
Like the hon. Member for Plymouth, Devonport (Mr. Jamieson), the hon. Member for Liverpool, Walton (Mr. Kilfoyle) has posed a reasonable question and I can give him a preliminary answer. Good order—which is, I think, at the core of his question—could be defined as when pupils' education is not being seriously or persistently disrupted. When the guidelines emerge, I suspect that words such as "seriously" and "persistently" will provide the key to the question. We are not expecting teachers to use physical restraint to deal with trivial or, dare I say, routine classroom difficulties of the kind that one expects in a roomful of boisterous, eight, 10 or 12-year-olds, but if there is serious or persistent disruption, whether fighting or abuse of property or people, the new clause could possibly come into effect. If the disruption were not serious or persistent, we would not expect the measures to be used.
We have a broad basis on which to proceed, but we will want to fill in the detail after consultation. I know that the hon. Member for Walton is not suggesting that we should not consult, but I am conscious of the number of times that I have undertaken to consult. I hope that we can all agree that that is the right way forward. Through my own experience in the Department, I have learnt that consulting is not only wise but usually fruitful and I am sure that a much better set of guidelines will emerge after consultation than would emerge without it. With that justification, I hope that I have managed to answer the hon. Gentleman's point.

§ Question put and agreed to.

§ Clause read a Second time, and added to the Bill.

§ Ms Margaret Hodge (Barking)
On a point of order, Mr. Deputy Speaker. Could you tell us whether the Government intend to make a statement on how they will deal with clauses 4 and 5 as they are consequential on new clause 3, which was rejected by the House? Do they intend to amend or withdraw those clauses?

§ Mr. Deputy Speaker
I have no information whatever on what the Government intend to do.