Getting a Grip? The Role of the Law in Response to Behaviour Concerns Relating to Pupils in School
There is general acceptance that good order in schools is ‘essential … if children are to be able to fulfil their learning potential’. Since the state has assumed a responsibility, in England, for promoting (via local authorities) the fulfilment by children and young people of their ‘learning potential’, and, in Scotland, for securing that ‘the education is directed to the development of the personality, talents and mental and physical abilities of the child or young person to their fullest potential’, it may be argued that there is a corresponding responsibility to seek to maintain a good standard of discipline in schools. Such a responsibility has certainly been accepted by government. Through an accumulation of reforms it has created a strong legislative framework for the enforcement of school discipline. Since educational as well as physical or psychological damage can be caused to pupils by the indiscipline of others, there are potential legal consequences for education providers, including the risk of negligence liability, where reasonable efforts are not made to prevent indiscipline and thus avoid its consequences.
Aside from the educational imperative for strengthening the legal framework for preventing or controlling misbehaviour among pupils there is a political motive, since a picture of state schools has developed in which they are often portrayed as characterised by disorder among pupils, with undercurrents of bullying and violence. Such an image has been reinforced through prominent media coverage of specific incidents and frequent expressions of concern. While discipline problems do exist, however, there is conflicting evidence with regard to the accuracy of such a representation. The second report by Sir Alan Steer on school behaviour and discipline, in 2009, found evidence of improvements in pupil conduct, which was in general considered to be good. When the House of Commons Education Committee looked at the issue in 2011, however, it found the evidence inconclusive as to whether or not indiscipline in schools was on a scale and had the level of impact on pupils and staff that some asserted; the Committee said it was ‘very difficult to form an accurate judgment’ on the issue. More recently, in his latest annual report, the Chief Inspector of Schools comments that a minority of schools, but still a significant number, have a real problem with disruptive behaviour which impacts on pupil learning:
‘We have accepted for far too long minor disruption and inattention in schools. Around 700,000 pupils attend schools where behaviour needs to improve. Unless this changes, teachers will struggle to create an environment in which all children learn well. Furthermore, if teaching becomes a daily struggle to maintain order in the classroom, not only will standards decline but good teachers will leave the profession.’
However, recently published research based on surveys of teachers and secondary school pupils has suggested that poor behaviour in schools is much more of a problem than this implies and that misbehaviour goes beyond low level disruption. Indeed, it is clear that some forms of the misbehaviour taking place involve quite serious acts – such as various forms of bullying, including ‘cyber bullying’. According to one recent report, based on data obtained via freedom of information requests to 31 out of 52 police forces in the UK, in the past three years nearly 1,000 pupils have been discovered to have weapons with them in school, including knives, ball-bearing guns, metal bars, baseball bats, air weapons, hammers and axes. There is an understandable concern that many pupils are at risk from their contemporaries’ violent, unruly or abusive tendencies and thus need protection from it. The fact that such propensities may in some cases manifest in homophobic, sexist or racist behaviour lends increased justification to attempts to highlight it. Concern has also centred on the deterrent impact of bad behaviour among pupils on teacher recruitment or retention. The alleged stabbing to death of a teacher at a Roman Catholic secondary school in Leeds in April 2014 has highlighted the potential risks, even though it has been described as an isolated incident. The general public perception that indiscipline is a significant problem in schools will have been reinforced by the announcement at the end of January 2014 by the Office for Standards in Education, Children’s Services and Skills (Ofsted) that there would be a rolling programme of unannounced visits by its inspectors to schools in response to parental concerns about pupil behaviour, although evidence from past inspections would also influence the selection of schools for visits. The inspectors will observe behaviour and interaction between pupils and staff or fellow pupils throughout the school day, including lunch break, and after school. They will talk to pupils and staff and look at how behaviour issues are addressed in the school. Reports based on such visits will be published. If behaviour and its management are not considered satisfactory a school may face an early full inspection.
Schools have been accused of a ‘culture of casual acceptance’ of disruptive behaviour and poor attitudes towards school work which are undermining educational attainment; and it is concern about this which seems to have prompted this new Ofsted initiative. Pupil behaviour and safety are among the specific aspects of individual schools’ performance which standard Ofsted school inspections must focus upon. This aspect was given greater emphasis at the behest of government (a policy supported by the Education Select Committee), which has long regarded good behaviour by pupils as critical to achievement in schools. For example, the Better Schools White Paper in 1985 described pupil behaviour as ‘a touchstone of the quality of the school system’. As discussed below, the present government has sought to strengthen schools’ management powers over discipline. So this new Ofsted initiative is both a measure of the continuing concern about the problem of indiscipline and an attempt to provide some reassurance to parents that any concerns about indiscipline will trigger a response.
Schools have a responsibility to manage pupil behaviour effectively and they hold wide-ranging statutory powers to assist them. The powers can help them assert control and apply sanctions when pupil behaviour crosses a boundary of acceptability. Even before the provisions on discipline in the Education Act 2011 and pursuant regulations came into force there was an elaborate legislative framework which had been built up over the years, in particular via the Education (No 2) Act 1986, the School Standards and Framework Act 1998 and, with an increased governmental commitment to improve discipline and pupil behaviour, the Education and Inspections Act (EIA) 2006.
The 2011 Act has strengthened powers in areas such as searches and seizures of items and through the replacement of exclusion appeal rights with a review process. The legal framework regarding discipline in schools which has emerged from all these reforms is complex. But it is not the whole story, for within the constraints set by the legislation the precise methods of managing pupil behaviour is, as discussed below, left to be determined by individual schools and their staff.
With the recent publication by the Department for Education (DfE) of new guidance to schools in England on behaviour and discipline, it is timely to reflect on the role of the law in managing pupil behaviour, its effectiveness and the rights and responsibilities of those affected by it. This article therefore analyses the current legal framework, as it has evolved, and reflects on whether the powers available to schools can ensure that all children’s interests are appropriately protected and whether schools will be able to manage the legal complexities inherent in their use.
 House of Commons Education Committee, Behaviour and Discipline in Schools. First Report of Session 2010–11, Vol 1 (HC 516-I) (TSO, 2011), Summary, p 3.
 Education Act 1996, s 13A(1)(c), as substituted by the Apprenticeships, Skills, Children and Learning Act 2009, Sch 2. This applies to those aged under 20 and those aged 20–24 who are subject to learning difficulty assessment: ibid, subs (2), as so substituted.
 Standards in Scotland’s Schools etc Act 2000, s 2(1).
 See in particular the bullying cases cited at n 60 below.
 See for example A Kershaw, ‘Primary school behaviour becomes more violent, according to new figures’, The Independent (online), 25 July 2012.
 A Steer, Learning Behaviour: Lessons Learned (Department for Children, Schools and Families, 2009).
 Op cit n 1, para 28.
 Ofsted, The Annual Report of Her Majesty’s Chief Inspector of Education, Children’s Services and Skills 2012–13 (HC 855) (TSO, 2013).
 T Hayden, ‘To what extent is behaviour a problem in English schools? Exploring the scale and prevalence of deficits in the classroom climate’ (2014) Review of Education (Early View online): http://onlinelibrary.wiley.com/doi/10.1002/rev3.3... For a summary see University of East Anglia press release, ‘Research suggests scale of disruptive behaviour at school is underestimated’ at:
 See S Middlemiss, ‘Legal Protection for School Pupils who are Victims of Bullying in the United Kingdom?’  Ed Law 237.
 N Woodcock, ‘Pupils caught with cleavers, guns and axes’, The Times 23 April 2014, citing an investigation by Sky News.
 On bullying, see further Ofsted, Children on Bullying. A Report by the Children’s Rights Director for England (Ofsted, 2008).
 See for example A Guap, The School Report: The Experiences of Gay Young People in Britain’s Schools in 2012 (Stonewall, 2012), reporting that despite improvements since a previous survey in 2007, more than 50% of lesbian, gay and bisexual young people were still experiencing homophobic bullying; and BBC News Report, ‘Teachers Report Racist Bullying’ (23 April 2009): http://news.bbc.co.uk/1/hi/education/8014880.stm –
reporting a survey by Teachers TV which found that nearly half of teachers regarded their schools to have a problem with racist bullying.
 See Department for Education, The Importance of Teaching. The Schools White Paper 2010, Cm 7980 (2010), para 3.2.
 See for example H Pidd and C Davies, ‘“She was amazing. Even after we left she was a friend, like a mother figure to us’, The Guardian 29 April 2014, p 3.
 Ofsted, Press Release:
‘Ofsted to carry out no notice behaviour inspections in response to concerns of
parents’ (ref NR2014 – 04), 31 January 2014:
 Education Act 2005, s 5(5A)(d), inserted via Education Act 2011, s 41.
 House of Commons Education Committee, Behaviour and Discipline in Schools. First Report of Session 2010–11, Vol 1 (HC 516-I) (TSO, 2011), para 31.
 Department for Education and Science, Better Schools, Cmnd 9469 (HMSO, 1985), para 88.
 Department for Education and Skills, Higher Standards, Better Schools for All, Cm 6677 (TSO, 2005). Note also the Government’s commissioning of the first report on behaviour and discipline by Sir Alan Steer: A Steer, Learning Behaviour. The Report of the Practitioners’ Group on School Behaviour and Discipline (Department for Education and Skills, 2005).
 Department for Education, Behaviour and discipline in schools. Advice for head teachers and school staff (DfE, 2014).
The full article appears in Issue 2 of 2014 of the Eduction Law Journal. If you subscribe to the journal please click here to read the full article.