Should we give heads the final say?

9th November 2007 at 00:00
Opinion is still divided on whether schools or independent appeals panels should decide if an excluded pupil is to be reinstated."If a headteacher wants to exclude a pupil because their behaviour is wrecking the education of others, they should be able to do so - the appeals panels have got to go."

Listeners to David Cameron's much-lauded Conservative party conference speech in Blackpool could be forgiven for experiencing a sense of deja vu.

In October, he became the fourth consecutive Tory leader to advocate the abolition of independent exclusion appeals panels. And when a panel overrules a head, forcing him to take back a boy he had expelled for carrying a knife - as happened in Manchester last year - it is easy to see the attraction.

But the potential problem is that, even if you get rid of the panels, it does not mean parents will stop appealing. That could mean an avalanche of expensive and time-consuming court cases, but the Tories believe they have a solution.

The panels were introduced in 1986 by a Conservative government which supported them until the party lost power. But when New Labour took over in 1997, the Tories began campaigning to get rid of them. Unsurprisingly, the idea is a popular one among traditional Tory activists who fear the country is going to the dogs and see the return of discipline to overly liberal schools as part of the answer.

It goes down well with teachers, too. A TES survey conducted before the 2005 general election found that more than three-fifths of teachers supported the abolition of the panels. But have headteachers, in reality, got that much to worry about?

As almost the last resort in school discipline, the appeals panel rarely comes into play. Even if schools do opt for a permanent exclusion, parents have an initial right of appeal to school governors. It is only when that avenue is exhausted that a case might go to an independent panel. And if it does, statistics show that the panel will back a school's decision in more than three-quarters of cases.

Latest available figures reveal that of 9,170 permanent exclusions in England in 200506, 1,060 appeals were lodged with panels. Of those, 240 were determined in favour of the parent, of which just 130 actually led to reinstatement of a pupil.

In other words, independent panels led to the practical reversal of a head's decision in just 1.41 per cent of all permanent exclusions.

But the cases where panels do back parents and pupil can be very serious ones that attract publicity. Last year's reinstatement of the Manchester knife-carrier was raised in Prime Minister's question time. Tony Blair described the appeal panel's decision as "quite extraordinary", guaranteeing the case national headlines.

And so the signal went out to schools, teachers and society in general that appeals panels were soft on behaviour, placing politicians under more pressure to reform or abolish them.

Similar forces were at work at the turn of the century. In 19992000, the proportion of appeals where panels decided in favour of the parent or pupil had rocketed to 36.7 per cent. Two years before, the figure had been just 20.2 per cent.

The NASUWT, the second largest teachers' union, was leading the campaign against the panels and calling for their complete abolition. The National Association of Head Teachers piled on the pressure, claiming that knife-wielding pupils were being returned to schools by appeals panels influenced by tough government targets on cutting exclusions.

New guidance said the panels should not normally overrule heads or reinstate violent or maliciously disruptive pupils. They should also consider the impact their decisions could have on other members of the school. Estelle Morris, as the new education secretary in 2001, published further proposals for reform: panels would have to have a clear majority of representatives from schools, including at least one serving or retired head and a governor. And they would not have to reinstate pupils, even if they found that technically the decision to exclude had been wrong.

But the changes did not come into force until January 2003, by which time the outrage over one specific decision had contributed Ms Morris's resignation.

A panel in Surrey ordered the reinstatement of two teenagers who had threatened to kill a teacher at Glyn Technology College in Ewell. Ms Morris tried to intervene, but when it emerged that she had no powers to overrule the panel, the fuss added to the pressure that led her to quit in October 2002.

Since then, various factors have taken some of the heat out of the situation. A House of Lords decision in March 2003 backed teachers' right to refuse to teach violent and disruptive pupils. By the end of the same school year, the proportion of panel decisions going against schools had fallen to 21.1 per cent.

This in turn led to a softening in stance from the teaching unions. By early 2005, when the Conservatives were once again calling for the abolition of the panels, even the hardline NASUWT said it had "reservations" about the policy.

But as the 2006 Manchester case showed, the panels remain controversial. Since then, further new rules mean new panel members and clerks must be trained before they serve. They have also given heads appearing before the panels the same right to legal representation enjoyed by parents.

The Government sought to tilt the balance further in favour of schools in September with guidance saying the risk of undermining a head's authority and the discipline in the school should be considered by panels.

But the Department for Children, Schools and Families remains committed to their existence, saying the right to appeal is "in the interests of natural justice". A spokesman said abolition would lead to a rise in the number of High Court challenges to school decisions.

Joan McVittie, head of Woodside High in north London, has sat on two panels, both of which supported the original decision to exclude. "We always hope that heads are fair, moral and just, but it is important that we have a safeguard - otherwise cases will go to court.

"Families can feel that decisions to exclude are prejudiced against them. This gives them the time and the space to put their case in a neutral environment."

The Association of School and College Leaders is also supportive. But Martin Ward, its deputy general secretary, says heads are still not happy with the way panels operate. The association wants more training for panel members to ensure they are not intimidated by lawyers hired by parents - and that they understand their remit.

"If a decision is manifestly unfair, then overturn it," said Mr Ward. "But what panels shouldn't be doing is saying, 'We are sympathetic with this pupil and are moved by their statement of contrition so we are going to replace the heads' and governors' judgment with our own.' "

He argues that 24.1 per cent of appeals going to the parent or pupil in 200506 is still "far too high" and that a more realistic figure would be less than 5 per cent.

For Michael Gove, Conservative shadow schools secretary, the solution is a simple if familiar one - abolish the panels. Asked about the prospect of a flood of legal action, he says the party is confident that the law can be changed to ensure the final say on exclusions remains within a school and becomes unchallengeable in the courts.

"We are in the process of copper-bottoming the legal position," he said. "But if the law needs to be changed to give heads this power, then we will act on that basis."

For Mr Ward, that is a step too far, even if parents' initial right of appeal to governors were to remain.

"It is often felt that school governors are too close to the head and therefore unlikely to overrule his or her judgment," he said. "A public official, even if it is one of our members, ought not to be able to make a decision to which there is no right of appeal."


- The panels are independent but administered by local authorities

- They can have three or five members

- The chair must be a lay member who has not worked in a school in any paid capacity

- One member (or two on a five-strong panel) must be or have been a school governor but not a teacher or head

- One member (or two on a five-strong panel) must be or have been within the past five years a state school head

- Panels hear evidence from the school and parent or pupil and can either uphold the exclusion, reinstate the pupil or decide that the pupil should not have been excluded but rule that relations with the school had broken down to a point where reinstatement was impossible.

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