Pupil discipline provisions enshrined in the Education and Inspections Act 2006 came into force in April 2007. Solicitor Dai Durbridge interprets what these measures will mean for work in schools

Is discipline in our schools deteriorating? Is there a growing trend of defiance from pupils? Do teachers need more power to maintain control in our classrooms? Whatever the true answer to these questions, the government believes that the vast majority of the public would answer ‘yes’ to all of them. It also believes that new measures to tackle these public concerns will be vote winners.

The new Education and Inspections Act 2006, perhaps better known for creating trust schools, also covers school discipline.

The act received royal assent on 8 November 2006 but the provisions of the act come into force in stages from late 2006 until the end of 2008. The provisions regarding school discipline came into force in April 2007. Teachers will in theory benefit from the powers given to them to assist them in retaining control of the classroom and beyond.

The government has been keen to trumpet the new rules, saying that they redress the balance between teacher and pupil.

However, some argue that these new provisions are unnecessary, and achieve little. School discipline has long been a key plank of good school management; well covered by guidance, and important to inspectors. Teachers were far from powerless in their efforts to preserve discipline. However, if your main aim is to ease a public concern, the important thing is to be seen to be doing something, even at the risk of failing to provide school staff with any useful powers.

It is important that any new rules on discipline are not too broad brush. Every disruptive pupil is different. Some are calculating and deliberate, some are vulnerable, and others are struggling with disability or special need. Whilst the new rules may take a very basic approach, they do try to observe these differences.

The new rules can be briefly summarised as:

  • placing new duties on governors and schools to devise, implement and review discipline policies
  • defining a ‘lawful’ disciplinary penalty
  • permitting detention in specified circumstances
  • protecting staff from claims for loss or damage to pupils’ possessions which have been confiscated
  • giving staff the power to use force in certain circumstances
  • providing a power to intervene in behaviour off school premises.

The new provisions on discipline policies spell out what school should be trying to achieve. Schools are to promote ‘self-discipline and proper regard for authority’, and encourage respect for others and to prevent ‘all types of bullying’. Basically, schools are to ensure that by regulating the conduct of pupils their standard of behaviour is acceptable.

Through this act the government wants to emphasise that pupils should take responsibility for their own actions. However, media attention has focused on the more eye-catching topics of confiscation of pupils’ possessions, and teachers using force.

The government has set out the rules on confiscation in one short section of the act.

The new provisions will stop pupils making any claim against any member of staff at a school for loss or damage to confiscated items, as long as the staff member can show that:

1. they had the requisite authority (any paid member of staff does, as do unpaid staff members if so authorised by the headteacher)
2. the confiscation was on school premises, or elsewhere where the pupil was under their control
3. the confiscation was ‘reasonable’.

The first two requirements are self-explanatory. However the third requirement of ‘reasonableness’ is more difficult. The concept of reasonableness features frequently in the definition of legal rights or duties, and it is notoriously slippery. However, it is also the way in which the new rules respond to each pupil’s individuality.

A large dose of common sense is always required to work out what is reasonable in any given circumstance. The new legislation tries to give more certainty by specifying that, in order to be reasonable, the confiscation must be ‘proportionate’, and that the staff member must also consider the pupil’s age, religion, special educational needs and disabilities.

However, it does not give any practical guidance on when it is reasonable to confiscate an item or when it is reasonable to destroy a confiscated item.

Let us take mobile phones as an example. By January 2005, 5.5m children under the age of 16 owned mobile phones and the vast majority of these children would bring their phones to school. In recent months there have been calls to ban mobile phones in schools following concerns raised after ‘happy slapping’ attacks upon teachers and the videoing of vandalism of school premises. Some say these incidents would not have happened if it were not for the presence of the mobile phone.

More subtly, mobile phones can be a disruptive influence in the classroom, the sending and receipt of texts and calls or game playing causing particular distraction to pupils.

So can teachers confiscate mobile phones? If so, for how long? Can they destroy them? Does the act protect them if they chose to do so?

The lack of guidance means the answers to these questions will vary from school to school, and will rely on the common sense of the teachers involved. Whilst this may be a good thing, it can leave teachers vulnerable.

It is unlikely that the destruction of a mobile phone will ever be considered reasonable, but the confiscation of it would be. Having confiscated the phone, how long should a teacher retain it? The day, the week, the term?

The act simply states that confiscation has to be reasonable. In law, it is usually the position that the person who believes they have been wronged has to show that the actions leading to it were not reasonable. In contrast, the act puts the burden of proving reasonableness firmly on the shoulders of the teacher.

There is a real risk that this new legislation will create more problems for teachers than it intended to solve. Providing teachers with a power to confiscate and destroy without offering guidance on how to use those powers could be problematic. When this is coupled by the fact that teachers could be forced to justify every decision to confiscate and/or destroy, the use of these powers looks less and less appealing.

There is currently no indication that guidance will be forthcoming. If it is not, schools may choose to advise their staff not to invoke their new powers.

The use of force
One point needs to be made clear at the start: the new rules are not a return to corporal punishment. Corporal punishment is and will remain unlawful.

The act does not allow staff to use force as a punishment. The use of force is allowed to stop a pupil:

  • committing an offence
  • injuring himself or another
  • damaging property
  • ‘prejudicing the maintenance of good order and discipline at the school’.

Again the concept of reasonableness is involved. Only ‘such force as is reasonable’ may be used.
In truth, most of this is not new. Staff in schools have long had the power to use reasonable force to prevent offending, injury or damage to property. However having it reiterated will give emphasis.

The truly novel aspect to the new rules is the right to use force to maintain ‘good order and discipline’. It is also couched in broad terms, and there is ample room for differences of opinion on whether force would be justified in any given circumstance.

Let us consider mobile phones again. Let us assume that a teacher decides to confiscate a pupil’s mobile phone in the classroom after a pupil continually distracts others with texts, calls and games during a lesson, possibly ‘prejudicing the maintenance of good order and discipline at the school’. Under the act, can the teacher use force to confiscate the phone? If so, how much force? What if the pupil were to refuse to hand over the phone? Is further force justified?

This new power could be even more troublesome to teachers than the power to confiscate and destroy a pupil’s property. Before these powers can be invoked, school staff will need clear guidance to help them.

One wonders how often school staff will rely on these new powers, and confiscate items or use force. Without guidance, it is a high-risk strategy. Misguided intervention, carried out imperfectly, is likely to make matters worse.

However, all is not lost. These powers are law and can be of use in the future as long as guidance is made available to assist school staff in their legitimate and affective use. Whilst there is no suggestion to date that guidance will be forthcoming, it can only be a matter of time before it is realised that the rules will be of little use without adequate guidance on their application.

Dai Durbridge is a solicitor for Browne Jacobson specialising in child protection and education