Draft Education (Amendment No.3) (Jersey) Law 201-: Lodging

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A decision made on 15 June 2017:

Decision Reference: MD-ESC-2017-0013
Decision Summary Title :	Addition of Article 36A to the Education (Jersey) Law 1999		Date of Decision Summary:	13 June 2017
Decision Summary Author:	Director - Policy & Planning		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	Restrictive Physical Intervention – Amendment to the Education (Jersey) Law 1999		Date of Written Report:	6 June 2017
Written Report Author:	Director - Policy & Planning		Written Report: Public or Exempt?	Public
Subject: To amend the Education (Jersey) Law 1999 by including Article 36A, to stipulate when and in what context school staff will be permitted to use a restrictive physical intervention on a child.
Decision(s): The Minister approved the draft Education (Amendment No. 3) (Jersey) Law 201- and decided to lodge it ‘au Greffe’ on the earliest possible date in order to include Article 36A with immediate effect.
Reason(s) for Decision: There is currently no specific legislation governing the use of restrictive physical intervention (RPI) by staff in schools. However, the Education Department has in place a robust policy and training programme based on best practice. The Education Minister is proposing to amend the Education (Jersey) Law 1999 in order to: Clarify the legal position of teachers and other school staff in the event they need to use a physical intervention when dealing with a child and when this is appropriate; More closely align Jersey and UK codes of practice and legislation on this subject; Provide clearer guidance for teachers and other staff in charge of children in Jersey schools in this potentially difficult area, particularly those recruited and trained from the English system.
Resource Implications: There are no additional resource implications with this proposed amendment. A robust policy and training programme based on best practice is already in place.
Action required: The Greffier of the States to be requested to arrange for the draft Law to be lodged ‘au Greffe’ on the earliest possible date.
Signature:		Position: Minister for Education
Date Signed:		Date of Decision (If different from Date Signed):

Draft Education (Amendment No.3) (Jersey) Law 201-: Lodging

Ministerial Decision Report – 6 June 2017

Restrictive Physical Intervention – Amendment to the Education (Jersey) Law 1999

The Education Minister is proposing to amend the Education (Jersey) Law 1999 in order to:

Clarify the legal position of teachers and other school staff in the event they need to use a physical intervention when dealing with a child and when this is appropriate;

More closely align Jersey and UK codes of practice and legislation on this subject;

Provide clearer guidance for teachers and other staff in charge of children in Jersey schools in this area, particularly those recruited and trained from the English system.

The current position

There is currently no specific legislation governing the use of restrictive physical intervention (RPI) by staff in Jersey schools. However, the Education Department has in place a robust policy and training programme based on best practice. The policy identifies the circumstances when RPI may be used, as follows:

To prevent a pupil from doing or continuing to do any of the following:

Committing an offence.
Causing injury, or damage, to a person or the property of any person (including the person themselves).
Prejudicing the maintenance of good order and discipline in the school or among pupils receiving education in the school, whether during lessons or elsewhere.

The issue is already covered under existing customary law, which states in broad terms that all citizens, including teachers and school staff, can intervene in an emergency to use reasonable force in self-defence or to prevent someone from:

committing a criminal offence, or
injuring themselves or injuring someone else, or
causing damage to property.

Only reasonable force can be used, and the degree of force used must therefore be proportionate. If the force used is greater than is needed, the person using it may be prosecuted for assault.

The proposed amendment

The draft amendment, if enacted, would echo the customary law position and apply it specifically to teachers and teaching staff by providing that a member of teaching staff is able use to such force as is “reasonable in the circumstances” to prevent a child from:

“committing any offence” or
“causing personal injury to, or damage to the property of, any person (including the child himself or herself)”.

However, the draft amendment would take the existing position one stage further by providing for the maintenance of good order. For example, at present, if a child is being disruptive in class, their behaviour will not necessarily involve any risk of injury to person or damage to property so there may be no justification in purely legal terms for using RPI, even though this may be needed to conduct the lessons properly.

In order to allow a teacher to act adequately in the interests of good order, the draft amendment (in common with the relevant provisions in English law [i]) would provide that a member of staff is also able to use such force as is “reasonable in the circumstances” to prevent a child from:

“prejudicing the maintenance of good order and discipline at the school or among any children receiving education at the school, whether during a teaching session or otherwise”.

This is in line with current Education Department Policy and UK legislation.

Scope of the proposed legislative change

The proposed amendment provides additional clarity in law for both teaching and non-teaching staff who work in schools. It does not cover other staff working in school (eg. visiting staff) unless the head teacher has specifically authorised a particular member of staff to work with pupils in the school. This could include leading specialist lessons (eg. members of the Youth Service) or working alongside specific individual children (eg. staff from the Alternative Provision Support Service).

Financial and manpower implications

There are no known manpower or financial implications.

Statement on collective responsibility

The Council of Ministers has a single policy position on this proposition, and as such, all Ministers and the Assistant Ministers for Education, are bound by the principle of collective responsibility to support the proposition as outlined in the Code of Conduct and Practice for Ministers and Assistant Ministers.

[i] S.93 Education and Inspections Act 2006

Education (Amendment No 3) (Jersey) Law 201- (the “draft Law”)

Human rights notes

The following human rights notes are recommended for inclusion in the Projet –

“Human Rights Notes on the draft Education (Amendment No 3) (Jersey) Law 201-.

These Notes have been prepared in respect of the draft Education (Amendment No 3) (Jersey) Law 201- (the “draft Law”) by the Law Officers’ Department. They summarise the principal human rights issues arising from the contents of the draft Law and explain why, in the Law Officers’ opinion, the draft Law is compatible with the European Convention on Human Rights (“ECHR”).

These notes are included for the information of States Members. They are not, and should not be taken as, legal advice.

The draft Law will amend the Part 6 of the Education (Jersey) Law 1999 (the “Education Law”) which contains provisions concerning behaviour and discipline within schools. The draft Law will introduce new provisions into the Education Law that will enable all teaching and non-teaching staff, and other persons who are not employed staff but who have been specifically authorised, to exercise reasonable force for the purpose of preventing a child from committing offences, causing personal injury or damage to property, or prejudicing the maintenance of good order and discipline, whether during a teaching session or otherwise.

Article 8 of the ECHR provides for the right to respect for private and family life, which includes the right to physical integrity. The power in new Article 36A(3) for members of staff to use force against a child has the potential, when exercised, to amount to an interference with that child’s Article 8 ECHR right. The power to use reasonable force against a child also has the potential to engage Article 3 ECHR (prohibition of ill treatment), however that Article is more relevant in cases of corporal punishment, in which the use of force is arguably more extreme (ie where the treatment is considered inhuman or degrading).

Any interference by the state in an individual’s Article 8 ECHR right must be justified under Article 8(2) ECHR. The interference must be (a) in accordance with the law; (b) in pursuit of one of the legitimate aims set out in Article 8(2) ECHR; and (c) necessary in a democratic society (that is in pursuit of a pressing social need and proportionate to the legitimate aim pursued).

In the present case, the interference, namely the use of force, is provided for by legislation and its use would, in exercising a statutory power that is precise in its terms and accessible, be in accordance “with the law”. The exercise of the Article 36A power must be in pursuit of the purposes in Article 36A(3)(a) – (c), ie preventing a child from committing an offence, causing injury and damage and prejudicing order and discipline. These grounds for exercising force come within the aims set out in Article 8(2) ECHR, namely the interests of public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. Accordingly, the interference with the Article 8(1) ECHR right in this case would be regarded as being committed in pursuit of a legitimate aim for Article 8 ECHR purposes.

For an interference with the Article 8(1) ECHR right to be considered “necessary in a democratic society” it must, in addition to pursuing a legitimate aim, be proportionate to that aim. “Necessary” implies the existence of a pressing social need for the interference in question. A measure will only be proportionate to the legitimate aim pursued if supported by sufficiently persuasive reasons.

The protection of school pupils from injury from the actions of other pupils is of such importance that it can be considered a pressing social need. Equally, preventing damage to property and the committal of other criminal offences is of sufficient public interest that it would also be considered a social need. As such, the exercise of reasonable force in such circumstances against an offending school pupil would be considered “necessary” and that use of force would be considered proportionate if, in practice, the level of force used is commensurate to the seriousness of the behaviour involved.

Education Department guidance on restrictive physical interventions is in the process of being updated to reflect the amendment to the Education Law and will provide guidance to school staff as to how to exercise the power. In addition, the guidance requires school staff to record and report incidents of the use of force and to notify this to parents and an external monitoring body. Such guidance is an additional safeguard against the disproportionate application of the power in Article 36A and will assist the power to be applied in an ECHR compatible manner.”