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Baroness Darcy de Knayth: My Lords, I thank the noble Baroness. I thank also the noble Lord, Lord Addington, for his useful intervention about separating special educational needs from a genuine disability or whatever. I point out that all the provisions to which the noble Baroness referred are now in place. The organisations are saying that all these children are excluded now. I will think about regulations before the next stage if the noble Baroness is willing to talk in the interim. I think that the regulations do not mention SEN invisibility; it is mentioned only in the guidance. Will the Government undertake at least to have it mentioned in the regulations?
Baroness Sharp of Guildford: I thank the Minister for her detailed reply to the various amendments to which I spoke. I am sorry that she has not seen fit to take up my modest Amendment No. 37, because it makes a difference whether the provision is in the Bill or in regulations. It is good sometimes to prod the authorities and we are trying to give a modest little prod. The Minister talked about flexibility in the regulations. I can think of nothing more flexible than the amendment I tabled. I am sorry; I rather hoped it might find faith with the Minister.
I did not table Amendment No. 38 but I would like to make one comment. There is a worry that we have made a distinction between genuine needs and behavioural problems in special education needs. Problems such as dyslexia might be called middle-class diseases, because informed parents make a fuss and get things done, but sometimes that does not happen. The advantage of having a clause in the Bill such as that proposed by Amendment No. 38 is that it makes the authorities consider such matters when they do not have parents prodding them hard to do so.
The noble Baroness said: My Lords, in moving the amendment I shall speak also to Amendments Nos. 41, 42, 43 and 44. All the amendments relate to fixed penalty notices for truancy, but the group raises two separate issues. Amendments Nos. 40, 42 and 43 relate to whether head teachers or other members of staff at schools should be given powers to issue fixed penalty notices, or whether that responsibility should be left with the local education authority and/or the police force.
We argued the issue in Committee and the Minister's response wasas I suspect it shall be again todaythat the power is entirely voluntary and that no head teacher is compelled to act as an agent for the authority in issuing fixed penalty notices. The Minister claimed that since schools had closest contact with such pupils, they were in a good position to know when a fixed penalty notice might be most appropriate and that these powers should be added to the toolkit of measures available to teachers at such times. She went further, adding that the measure had been welcomed by some head teachers.
I am not certain which head teachers the Minister spoke to. We are raising this issue again because of the unhappiness both of many of the bodies representing head teachers and teachers and also of the Local Government Association. I myself have spoken to the heads of the Secondary Heads Association and to the National Association of Head Teachers and I can find no support for the intrusion of these provisions in the Bill. Voluntary or no, they claim that if the provision is there, they may come under pressure to use it. There is very real disquiet at the effects that such use may have.
First, those bodies are worried about the effect that the power to issue fixed penalty notices might have on the relationship between schools and parents. As has been stressed in relation to parenting contracts, the more relationships are voluntary and co-operative, the greater the ownership of the outcome and the more effective any counselling or classes are likely to be. Once the school breaks that co-operative, voluntary boundary, trust is broken and the same outcome cannot be guaranteed.
The Local Government Association has similar concerns. It remains unconvinced that fining parents is an appropriate or helpful response to the problems of truancy or bad behaviour. They point out that, given that when a parent is in breach of a parenting order or has failed to pay a fixed penalty they may be sent to prison, the measures may also lead to an increasing number of parents in the looked-after system, which I think all of us would agree is not a satisfactory outcome.
The LGA further argues that the Government are claiming that a framework for fixed penalty notices and for parenting orders can be developed by local education authorities and their schools forums. The LGA is concerned that that would not prevent an overuse of the new measures by some schools and therefore differential treatment of parents and children. The Government's arguments that fixed penalty notices are an alternative to prosecution equally fail to reassure that schools themselves should be involved in fining parents.
To sum up the arguments about head teachers, our case is that schools should not be put in a position of fining parents. It is ludicrous to suggest that head teachers, with all their other responsibilities, should be expected to police the truancy laws and impose fixed penalty fines on parents. The heads do not want the task. They have not got the time. It plays havoc with carefully nurtured home/school relations and it puts them and other members of staff at risk should any parent respond with violence. It is, indeed, one of the Government's barmier ideas.
I turn to Amendments Nos. 41 and 44. Amendment No. 41 is aimed to set out a proper limit in which the Secretary of State can exercise his discretion on the level of fine. The limit of any possible fine should be determined by legislation in line with provisions for penalty notices for criminal offences under the Criminal Justice and Police Act 2001. Fixed penalty notices are designed to deal with minor behaviour, and the stated penalty should reflect that. In contrast, the court fine level is based on the most serious behaviour that warrants prosecution, and the court, unlike the fixed penalty notice, is able to tailor the amount of the fine to the financial status of the individual.
Amendment No. 44 would provide a minimum content for any fixed penalty notice and ensure that that content is specified in the Bill. There is no reason why the standard contents of a fixed penalty form cannot be stated in legislation rather than being laid out in regulations. Moving the offence from the formal criminal justice system into an administrative system should not deny the individual basic information and access to rights. The amendment is based on provisions already existing for fixed penalty notices for disorder offences under the Criminal Justice and Police Act 2001. An individual should be provided with basic information relating to the criminal offence that they are accused of. In addition, individuals should be provided with the basic practical information required to understand the notice and their right to challenge it. I beg to move.
Lord Elton: My Lords, I rise to support the amendment in some amazement that it should be necessary. Anyone who has observed the development of relationships between a traffic warden and motorists who have overstayed their leave at a parking meter will know that the introduction of the power to fine immediately develops a considerable feeling of hostility to the person levelling it. The Minister is reported to have said that this is something that head teachers do not have to undertake, but as the noble Baroness, Lady Sharp of Guildford, has said, collecting fines and deciding who should have to pay them is an onerous and expensive business which any local authority in its right senses will wish to devolve to the head teachers. They have considerable power over head teachers, and that power will be exerted to pressurise them.
I notice that the noble Baroness sitting next to the Minister is shaking her head. No doubt she will relieve my anxiety, but at the moment I find it difficult to imagine what sort of head teacher under what sort of circumstances would voluntarily acquire this power.
One of the more difficult relationships for a head teacher or any other teacher is when the parent takes the side of the child against the schoolwhen a child is in error in some way and is being disciplined and a parent comes in. I had a case when a parent came in with his coat off because he thought that his child had been wronged. He threatened to have a boxing match over the matter. If this is a cause in which the parents themselves are involved and the penalty will fall on them as a result of the conduct of the child, an alliance will be formed between the two and the teacher will lose the most valuable of all alliesthe parentsin trying to change the behaviour of the child. This provision should not be in the Bill and it will be used inadvisedly if it remains there.
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