Laying down the law
In the 2006 Education Bill, one of the few sections which met with widespread approval was that on discipline. However, there is still much legal uncertainty surrounding the new powers.
With the Education Bill, the government has decided to put the powers and duties of heads, governors and teachers on a statutory basis both to attempt to restore some certainty and to promote the government's 'respect' agenda.
The bill proposes to give legal authority for disciplinary sanctions and states who may apply them and where; it also gives authority for confiscation, detention, and the use of force to restrain pupils.
However, the danger in codifying powers is that, by missing something out, they could actually be diminished.
That is why, for example, it becomes necessary to state specifically that a disciplinary sanction can be used to ensure "that pupils complete any tasks reasonably assigned to them in connection with their education".
Who has the power
The power to search pupils for offensive weapons without consent is being secured by the Violent Crime Reduction Bill. The power to search lockers and bags without consent is assumed.
The bill would extend the power to apply for parenting orders to governing bodies as well as local authorities; it may impose a duty to hold reintegration interviews.
It will become an offence to allow an excluded child to be in a public place during school hours; for this a parent may be handed a fixed penalty notice by a constable or a properly authorised local authority officer or a school staff member.
There is further legislation on exclusions but the details are left to regulation, which can be easily amended. One thing of note that was left open is who is responsible for the full-time education of a child who is excluded, and from when.
The general powers and duties of heads and governors are restated essentially as in previous legislation with more emphasis on the duty to promote good behaviour.
However, governors also have a duty to promote the welfare of children, first stated in the 2002 education act and reinterpreted in the five outcomes of the Children Act 2004.
If welfare is interpreted as 'safety and well-being', it fits well with the present act. However, if exclusions are interpreted to be an indicator of failure to promote welfare (as in the Ofsted inspection schedule) there would seem to be a conflict.
One interesting addition is that, before issuing their 'written statement of general principles' to the headteacher, governors would be required to consult a "sample of the registered pupils at the school", as well as staff and parents. This does not have to be the school council.
The bill also confirms that governors can require a head to use specific measures to establish discipline if they so wish.
Manna for lawyers
Some may consider the passing of this bill to signal 'happy hour' for lawyers. The word 'reasonable' or similar is used 14 times in the section on behaviour; it is a fertile field for the ingenious.
However, 'reasonable' should be interpreted either as the collective response of reasonable heads or as in line with previous judgements as to what is reasonable. Generally speaking, judges' sense of what is reasonable coincides with that of heads.
The standard of behaviour that is 'acceptable' too "must be determined by the headteacher, so far as it is not determined by the governing body".
It will be important to follow exactly the provisions of the bill on publicising measures to promote good discipline and to keep sufficient records so as to prove that a disciplinary penalty was reasonable.
This requires that the penalty was proportionate in the circumstances and that any particular issues that affect the pupil - for instance age, SEN, disability and religious requirements - have been considered.
Finally, who may impose these sanctions? Here decisions will have to be made and publicised. It is for the head to decide who may impose any sanction. Paid and unpaid members of staff are eligible if the head so decides.
A 'paid member of staff' covers all those employed by the school or by others, so it appears that staff brought in for extended school purposes will have the power to discipline and punish pupils.
It would not be surprising if the introduction of new legal powers to discipline resulted in a court case before too long; but the position in common law was becoming too complex to be satisfactory.
The new legislation secures all the powers from common law and adds some. In the long run it should help.
By Richard Bird, ASCL's legal consultant
© 2017 Association of School and College Leaders