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The Parliamentary Under-Secretary of State, Department for Children, Schools and Families (Baroness Morgan of Drefelin): My Lords, guidance contained in the document, Safeguarding Children and Safer Recruitment in Education, which came into force in 2007, makes it clear that it is not realistic to suggest that teachers should never touch pupils. Staff should not, of course, make gratuitous physical contact with their pupils, but there are sound reasons why, in the course of teaching an instrument or coaching a sport, a teacher may need to have physical contact with a pupil.
Lord Lucas:My Lords, I am grateful for that Answer. Does the noble Baroness agree with me that it is important for teachers to feel confident in having physical contact with pupils, not only when teaching an instrument but hugging a child when it is in distress or clearing up quickly and without fuss some diarrhoeal disaster? Those are ways in which a parent would be comfortable with a teacher touching a child. Does she also agree that there is a great deal of evidence that teachers do not feel comfortable with this and that teacher training institutions are advising young teachers that they should not touch children in all but the most extreme circumstances, hence the Musicians Union giving the advice that they have? Should we not review the support and advice we are giving to teachers to see whether we can help them to behave in the way we would like?
Baroness Morgan of Drefelin: My Lords, the noble Lord is right. Teachers should be reassured that, in the right circumstances and in the appropriate way, they should be able to touch pupils, whether to show them where to put their fingers to get the correct tone when they are teaching the violin, or if a child falls over in the playground and needs reassurance, to give them a hug as a parent might do. Teachers should feel confident that they can touch pupils in the appropriate way, but it is important that they have guidance, support and training and that the department ensures that that happens.
Baroness Massey of Darwen: My Lords, does my noble friend agree with me that this could all get a bit silly? Most pupils and, in fact, most teachers know what is and is not appropriate touch, and to inflict yet more advice on teachers could be counterproductive.
Baroness Morgan of Drefelin: My Lords, I agree with my noble friend. It would be a great shame if this were to become silly. Music teachers provide a tremendous service to our young people. Music is an essential part of learning, and growing up and I am delighted that music and sport are becoming so much more successful and prevalent in our schools. It is great that I have the opportunity to be clear that we expect teachers to be able to touch and hug and help children in very practical ways in schools.
Baroness Walmsley: My Lords, will the Minister encourage schools to be really clear with parents about what is expected in different subject areas and what is
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Baroness Morgan of Drefelin: My Lords, the noble Baroness has made a very good link with the new commitment the Government have made to make PSHE statutory. PSHE will help children and young people understand what is appropriate and what is not appropriate touching from adults and, as she was hinting, it will give young people the confidence and assertiveness to be clear about what they see as acceptable.
Baroness Finlay of Llandaff: My Lords, does the Minister agree that the child who is frightened of being touched is touched against their consent, and consent is the issue? If a child is asked, Would it help you if I show you how to put your fingers correctly or how to hold the bow correctly? the child who is frightened will say no and the child who wants that help will agree. Similarly, the child in the playground to whom the teacher says, Do you want a hug? will accept it or reject it. We are forgetting the role of the child in consenting to the touch.
Baroness Morgan of Drefelin: My Lords, I accept the point the noble Baroness is making. The Federation of Music Services which represents providers suggests in its guidance that, as a matter of course, music teachers should discuss with parents and children their approach to teaching. That could mean the teacher saying, I will show where to place your fingers to make this chord, and then doing it in a way that does not impose on the child and create a sense of uncomfortable pressure. That is the mark of a good teacher.
Baroness Shephard of Northwold: My Lords, I strongly agree with the noble Baroness, Lady Finlay, about involving the child, but I was relieved when the Minister said that she does not want things to get a bit silly. However, surely she must agree that things have got a bit silly, as such guidance has been issued for music teachers. Does the Minister have any reflections for the House on how we have got into this extraordinary position of paralysis, one where teachers do not dare to do the natural thing?
Baroness Morgan of Drefelin: My Lords, I listened to the comments made by representatives of the Musicians Union for the report on this subject on the Today programme and found it difficult to see where the evidence comes from. The union could not say exactly how many false allegations were being made. It is important that we have evidence in matters of this kind. The department has not received evidence of large numbers of music teachers coming forward with such concerns. If there were, of course we would take these matters very seriously.
Moved, That the Report of the Science and Technology Committee, Air Travel and Health: an Update (First Report, HL Paper 7), and the Report of the Joint Committee on Human Rights, Monitoring the Governments Response to Human Rights Judgments: Annual Report 2008 (31st Report, HL Paper 173), be referred to a Grand Committee.(Baroness Royall of Blaisdon.)
(1) This section applies if an application for development consent includes a proposed development of any kind on land which is or forms part of a common, fuel or field garden allotment or open spaces.
(a) an application for development consent is made for development on a common, and
(b) it is the intention of the owners of the commons to apply for its deregistration and to provide replacement land which they own or intend to acquire by agreement.
(4) No consent shall be issued unless the Commission is satisfied that the replacement land is or will be subject to the same rights, trusts and incidents as have applied to the land included in the development consent.
The noble Lord said: My Lords, Amendment No. 121H brings us to the issue of commons and village and town greens, which are special forms of common land. I am not suggesting that it is a perfect amendment but I hope that it will provide a means by which the Government, in the time left to us on the Bill, can find a way to solve certain problems.
I am concerned about the implications of the Bill for commons. It is only two years since this House and the other place passed the Commons Act 2006 that brought up to date commons legislation, some of which goes back a long way. In particular it brought up to date provisions for the registration, deregistration and protection of commons, and confirmed their special status.
Commons are usually small pieces of land scattered around the country, comprising around 3 per cent of the land area of England, and are special historical relics of the past that nowadays perform important functions not just in terms of the traditional rights of commoners, but for biodiversity, the environment and recreation. The important point about their special status is that it is a legal status provided by the Planning Act 2006 and is outside the planning system. This amendment probes the relationship between commons under the Planning Act which are outside the planning system and commons under this Bill as it will apply to large infrastructure developments which may affect commons. The Commons Act does not prevent development on commons, but it does give extra protection. In particular, Section 38 of the Commons Act 2006 means that for development on commons a separate application must be made to the Secretary of State for Defra unless a compulsory purchase order is made on that common. In that case, other protections apply.
Commons are not only special, historical and valuableoften smallpieces of land scattered around the country, but they have an unusual status in that there are two kinds of rights on those commons. First, there are normal rights of ownership; all commons are owned by somebody, usually by private individuals. Secondly, there are rights of common, which are held by other people. Those, of course, are the commoners.
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The Commons Act provides that if a common ceases to be a common by being deregistered, equivalent land has to be provided. This is called replacement land and it must have replacement rights for the group of commoners who have had their rights displaced. All this was confirmed recently by an excellent document, Common Land Consents Policy Guidance, published by Defra in June 2008. In particular, it underlines that unless a compulsory purchase order is made on the common, the development that can be allowed must be quite small-scale and necessary for the common itself. The extra protection also includes developments on the common. The Commons Act consents that have to be made for development on the common include development that would not otherwise need planning permission, such as fencing and ditching. The regime is stricter than the normal planning regime and is in addition to having to apply for planning permission.
I first raised the issues covered by these amendments in Committee. I have had discussions with the Minister and officials since then. I understand the issues far more clearly now than I did then; they are extremely complex. The issues come down, first, to questions about Part 3 of the Commons Act and the Commons Act consents that are required for development on commons, and the extent to which they are swept away by this Bill in the case of commons where development is sought as part of a major infrastructure development. Secondly, there are issues relating to replacement land. Clauses 129 and 130 of the Bill, which derive from the Acquisition of Land Act 1981, deal reasonably with the question of replacement land and commoners rights where the development consent issued by IPG includes a compulsory purchase order on a common. The clauses cover that very well. Clause 129 covers the question of replacement land, and Clause 130 covers the replacement rights of commoners.
That still leaves the following questions open. First, does the Planning Bill, notably Clause 118, mean that an application for consent under Part 3 of the Commons Act 2006 is no longer required when there is an application for development consent under the Act? Secondly, if that is so, what is to prevent a situation in which a developer of a common and/or a subsequent occupier of that common finds that inappropriate rights of commons still exist on that development? Thirdly, do Clause 118(3) and Schedule 5 allow a development consent to remove commons rights from a common without the provisions of the Commons Act 2006 having to be used, particularly to provide the replacement land and/or rights? I do not believe that that is the Bills intention, because in the case of CPOs it is there but it is not in other cases.
For replacement land where a CPO is not usedbecause, for example, I may be applying for an application for development consent for a large infrastructure
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These are technical and complex issues, but they are important; they are a byway in the discussion of the Bill because it is about commons and the way they are affected. It would be remiss of this House to let the Bill pass without these questions of common land, as part of applications for development consent, being resolved. I hope that we can agree on amendments to the Bill to deal with those questions, make it clear what the position is and continue to protect the special status of commons.
I repeat that I am not saying that there should never be development of this kind on commons. The important thing is to ensure that, where such development takes place, the normal issues in relation to commons are considered as part of that development and, if necessary, replacement land and commons rights are produced. I beg to move.
Lord Tyler: My Lords, I shall briefly speak to the amendment moved by my noble friend Lord Greaves. I have spent some 15 years in this building seeking agreement on the improvement and modernisation of the law relating to common land and I have experience, both on Dartmoor and on Bodmin Moor, of dealing with the complex situations that arise from the difficult relationship that there has often been in the past between the owners of common land and the commoners. At the time of the legislation that became the Commons Act 2006 I warmly congratulated this Administration on the initiative they took to resolve some long and deep problems that arose out of the lack of real simplification and careful arbitration within this system. Having congratulated them then, I hope that today we will have absolute assurance that nothing in the Governments proposals in this Bill could undermine the work done in preparation for that Act.
These commons are of critical importance in many rural communities. They may be peripheral to the main purpose of the Bill, as my noble friend says, but for people in those communities commons legislation is critical. If the Government were perceived somehow to have reneged on that careful negotiation over many years by undermining what happened in that legislation, the breach of faith that could be identified would be very serious and would raise considerable concerns in those communities.
The issue, as my noble friend has said, revolves particularly around replacement land. That is where it will be of most concern to those who are directly affected, whether they be owners or commoners. The replacement of, for example, grazing land in many of the communities that I have had the pleasure of representing in the past will be of considerable importance. After so much negotiation and compromise by some
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Lord Cameron of Dillington: My Lords, I rise to support the amendment. Commons are a vital part of our natural heritage. In the old days, every community used to have one but sadly they are now greatly diminished in both quantity and quality. They still serve a useful role, however, for common rights, notably grazing, and for access and leisure. Even the smallest patch of surviving common can act as a formal or informal village green. In rural communities and, more importantly, urban communities, that little patch of green can be of enormous benefit in raising the quality of life.
I will not repeat the well spotted concerns of the noble Lord, Lord Greaves, but it would be sad if the protection so recently granted by the Commons Act were to be undermined, albeit inadvertently, by this Bill. I hope, therefore, that the Minister will be able to reassure us and resolve our concerns.
Lord Judd: My Lords, I say to my noble friend that it is not only on other Benches that this concern exists; it certainly exists on my own part. I know how much good will the Government generated by their recent approach to the importance of commons and their proper administration, and it would indeed be a shame if inadvertently in the context of this Bill that good will was undermined. The commons have immense significance in our social history. They have real significance in terms of the character of our landscape. However much we become energy sufficient and face up to the demands which are necessary to make us energy sufficient, to undermine and destroy the quality of our landscape in doing that would be unforgivable.
As I said at Second Reading, we have learned from the Industrial Revolution how all that was achieved then could have been achieved with greater sensitivity to the character of the land rather than the rape and damage, bit by bit, of everything that is beautiful and socially and historically important within the United Kingdom.
Lord Chorley: My Lords, I, too, support the noble Lord, Lord Greaves. One of the characteristics of this Bill is that it seems to bump into a huge range of existing legislation, some of which is unfamiliar to most of us. A week ago I thought we had identified all these clashes and put them behind us. Obviously I was wrong and now we have another problem, namely common-land legislation. Like the noble Lords, Lord Greaves and Lord Tyler, and others, it is not long ago that I recall trying to understand the common-land legislation going through this House. I remember interesting passages in Committee in the Moses Room. At that time, it seemed to be pretty obscure stuff and very historical. It has, however, cropped up again.
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