article
On Your Best Behaviour
23 July 2008
Can schools currently be seen to be fit for purpose in terms of
their existing legal powers in relation to managing behaviour? Many
readers will have noted over the years that whenever a politician
wants to be heard to talk tough, an announcement about classroom
discipline is never far away. Invariably such announcements will
use classroom discipline as a metaphor for wider problems in
society and as a way of sounding tough on law, order and crime more
generally.
This has a number of arguably unfortunate side effects. Firstly,
it means that issues of school discipline and behaviour often tend
to be portrayed as inherently negative subjects. In terms of the
law that is an unhelpful misrepresentation. As every head teacher
knows, and as the European Court of Human Rights has itself stated,
discipline is actually a positive and integral, even indispensable,
part of any education system .
Secondly, it gives further momentum to the increasing tendency
to regard schools and the professionals who work within them as
being at the core of social reform for children. Witness the
contents of the recently published sprawling 170-page Children’s
Plan which has placed schools at the hub of an array of measures
designed to improve children’s behaviour and by the same token
their general life prospects.
The latest incremental development of schools’ responsibility
for managing pupil behaviour has been the announcement of new
guidelines for schools to tackle gangs. Children and Young People's
Minister Beverley Hughes has declared that schools, as “the only
truly universal service for children and young people” should now
be the "first line of response" for tackling teenage gangs. The
guidelines include advice on how to spot gang members and find out
which gangs are operating in the local area. As if to confirm the
direction of travel described above, in response General Secretary
of the Association of School and College Leaders, Dr John Dunford,
described schools as “an oasis of morality …. helping to
create a just, moral and peaceful society.”
All this places tremendous expectations on schools and their
leaders and casts doubt upon the adequacy of the legal framework
within which school behaviour is currently to be managed. In the
latter respect the latest range of improvements to powers and tools
for dealing with poor behaviour came into effect between April and
September 2007.
The new law followed a report by a practitioners' group on
school behaviour and discipline. The report, the work of a
government task force led by Sir Alan Steer had been charged by the
government with looking into school discipline. Among its many
recommendations the report called for the introduction of "a
single, new piece of legislation to make clear the overall right to
discipline pupils". It further said it wanted a new law to
"encompass something that will make clear teachers' right to
restrain a pupil using reasonable force". As a result of this
report, the Government set out its commitments for improving school
discipline in the White Paper, Higher Standards, Better Education
for All . In contrast to its predecessor report, the Elton Report
(1989) which was largely left to gather dust, large parts of the
Steer Report have subsequently been implemented in sections 88-96
of the Education and Inspections Act 2006 (EIA 2006). So what do
they provide for?
Some of the provisions in the School Discipline chapter of EIA
2006, such as the establishment of a statutory power to enforce
school discipline are new. This created a power for teachers and
certain other school staff to enforce disciplinary penalties where
a pupil's behaviour fell below the standard that could reasonably
be expected of him or her.
Section 90 defines 'disciplinary penalty' as a
penalty imposed on a pupil by any school at which education is
provided for him or her, where his or her conduct (including off
school premises) falls below the standard that could reasonably be
expected because (for example) s/he fails to follow a school rule
or an instruction given by a member of staff. To safeguard pupils
against unfair or inappropriate punishments section 91 specifies
conditions that make lawful the imposition of a disciplinary
penalty (other than exclusion) on a pupil, such as:
i) that the penalty does not breach any
statutory requirement or prohibition (including legislation
on special educational needs, disability, race and other equalities
and human rights
ii) that the penalty is reasonable in all the
circumstances (ie that the punishment is proportionate and that any
relevant personal characteristics of the pupil such as age, any SEN
or disability s/he might have, and any religious requirements
affecting the pupil, have been taken into account)
Innovatively section 89(5) of the EIA 2006 has
given head teachers the power to regulate pupils' behaviour when
off school premises and not supervised by school staff to such
extent as is reasonable. This has been an important development
particularly in potentially enabling schools to make disciplinary
interventions in relation to incidents of.
In this context it is important to note that
while schools are able to regulate certain conduct off school
premises, they can only impose sanctions when the pupil is on the
school site or under the lawful control of a staff member. It
follows that a sanction can be imposed whilst a pupil is on a
school trip, but not whilst the pupil is on his or her journey home
from school. Staff could indicate to the pupil that s/he has been
seen misbehaving and will be punished, but must wait until the
pupil is next in school to issue the punishment.
The Act also replaced existing legal
provisions on physical restraint of pupils (section 550A of the
1996 Act). Section 93 enables a member of staff to use reasonable
force to prevent a pupil from:
- Committing an offence
- Injuring himself or another
- Damaging property
- "Prejudicing the maintenance of good order and discipline at
the school".
In truth, most of this was not new. Staff at schools have long
had the power to use reasonable force to prevent offending, injury
or damage to property. The truly novel aspect to the new rules was
the right to use force to maintain "good order and discipline". It
was couched in broad terms, leaving ample room for differences of
opinion on whether force would be justified in any given
circumstance. This meant that much hinged on the guidance
supporting the new legislation, replacing earlier guidance provided
by the National Strategies on school behaviour and attendance
policies.
The guidance contained recommended good
practice and schools are strongly advised to follow them. However
in the 67-page guidance, only 2 ½ pages are devoted to the power to
discipline on school premises. Within that, there is no
practical guidance on how and when these powers could and should be
used. Furthermore the guidance cannot offer a definitive
interpretation of the law — interpreting the law always remains a
matter for the courts.
As a result, school staff have to date been understandably
reluctant to rely on these new powers. Without proper
guidance or case law, it is a high-risk strategy. Misguided
intervention, carried out imperfectly, is likely to make matters
worse. The position one year on therefore is largely the same as
before – teachers will not be using force simply to maintain good
order in the classroom.
Yet notwithstanding the slow rate of change in the use of new or
reasserted legal provisions at the coal face, the pace of political
developments in the responsibilities of schools for the behaviour
of their pupils shows no signs of abating. Ministers have recently
asked Sir Alan Steer, a behaviour expert and Head, to review
progress since his 2005 report. It is to be hoped that Sir Alan
will recognise the need for time to be given for the latest legal
initiatives to bed down before any further legislative reform is
announced. The challenges of school behaviour and discipline are
considerable and multi-faceted. As the Schools Minister, Kevin
Brennan refreshingly admitted "Unfortunately the only school where
you can wave a magic wand to solve behaviour problems is
Hogwarts.”
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