The NCTL’s procedures are robust and rigorous, says James Lynas, but it needs sufficient numbers of properly trained staff to apply the rules correctly
The National College for Teaching and Leadership’s disciplinary process has rightly come under more scrutiny after the collapse of action against five teachers in the so-called “Trojan Horse” scandal – after we found that it hadn’t fully disclosed all documents in its possession to the teachers.
These missing documents were generated by Peter Clarke’s team in early 2014 when as he investigated the allegations in the Trojan Horse letter – that some Birmingham schools had been taken over by advocates of a particular strand of Islam. Clarke’s public report stated that he had 2,000 pages of witness statements from over 50 interviews. It now appears that this material was shared with the NCTL but not with the five teachers before the panel.
Disciplinary procedures for teacher misconduct cases are explicitly clear: “the NCTL will send to the teacher all documents it is considering during the investigation” (para 3.5). This is subject to one exception: “The NCTL may receive documents … that are not appropriate or practicable to be copied or sent to the teacher. Examples may be pornographic material … In these cases NCTL will provide the teacher or his representative with a description of the evidence, an explanation why a copy can’t be provided and details of arrangements for inspection” (para 3.3).
We need analysis of whether staffing reductions impacted on this case
Had this rule been applied properly, the hearings would have proceeded fairly. It is possible that the NCTL felt the documents should be kept confidential, but at the very least it should have disclosed that it had them and given reasons for why it felt it couldn’t disclose them. The NCTL’s investigation into where things went wrong should now be made public.
The confusion may have arisen because later in the procedures, in para 4.12, the NCTL is required to issue a formal notice of the panel hearing, and must also send out “any relevant documents which are relied upon and in the presenting officer’s possession at that time which have not previously been disclosed”. This suggests that the NCTL perhaps needs only to release the documents on which it is relying, with no need to disclose any others.
The solution is not a massive overhaul of the rules. We need better training for those making decisions under the procedures in the rules of natural justice, and an analysis of whether staffing reductions impacted on the conduct of this particular case, which has been one of the most complex the NCTL has ever had to deal with. However, the DfE must now introduce a clarifying rule change to state that the NCTL is under an ongoing duty to disclose all documents in its possession relevant to the case, whether or not it intends to rely on the documents themselves and particularly if they are prejudicial to the NCTL’s case.
The panel process, which has professional and lay members, a review by a senior DfE civil servant and a right of appeal to the High Court, ensures that the public can have more confidence than before in the integrity of the profession.
The NCTL’s record in handing misconduct cases is vastly superior to the previous GTCE regime in terms of the volume of cases it has processed. The GTCE on average barred 19 teachers per year from for misconduct. Based on Schools Week’s analysis, the NCTL’s annual average is 82. This increase is not because the profession has become four times more badly behaved in the last five years – it’s because the NCTL has been more robust and rigorous. And for perspective the profession has approximately half a million members in England.
Dismantle the entire regulatory system would be an overreaction to a one-off mistake – all that we need is sensible tweaking.
James Lynas is a partner at Winckworth Sherwood LLP