A promise has been made to end school exclusions - we must keep it

In a little over a year, the practice of excluding looked-after children and young people from school will cease entirely. At least, that is The Promise which Scotland has made to these pupils. One year out, what progress is being made?

First, let’s recap.

Exclusion from school is a power which head teachers have where the continued attendance of a pupil at school would be likely to be seriously detrimental to order and discipline at the school or the educational wellbeing of the pupils there.

It is accepted that exclusion is hugely damaging to children and young people. The Scottish Government’s guidance on exclusions could not be clearer on the detrimental impact exclusion has, particularly on vulnerable pupils (including looked-after children and young people).

Among other effects, the damage that an exclusion does to relationships at school “can often exacerbate the negative consequences that earlier traumas have had on their lives”. Exclusions have been linked to poor academic attainment, non-attendance, offending behaviour in later life, substance abuse and suicide.

Despite this, school exclusion is disproportionately used on looked-after children and young people. If you are looked-after, you are over six times more likely to be excluded from school than if you are not. 

There is a legal duty to provide alternative education to pupils who have been excluded, but in 86 per cent of cases no alternative education is provided – not even work sent home. These statistics are from the academic year 2020/21 – the year when providing education to pupils who were at home was something schools were doing daily.

So, when The Promise was made, in February 2020, it included this clear commitment: “Scotland must not exclude care-experienced children from education or reduce their timetable to such an extent that they are denied their rights to education. The formal and informal exclusion of care-experienced children from school must end.”

The bit about “informal exclusion” is really important, because schools are already getting quite good at dressing exclusions up as other things. I represented a looked-after pupil who had been excluded from school at a tribunal last year. Throughout, the education authority denied that she had been excluded, even though they accepted that she was not allowed to return to school (and that the police may be called if she tried to return).

Instead, they insisted, they had taken a “decision to move all [the child’s] learning opportunities outwith the [school] building”. The tribunal didn’t accept that attempt to rebadge an exclusion, and The Promise isn’t going to buy any of that New Speak nonsense either.

It's also important to note that exclusion “must end”. Not “must reduce” nor “must be careful about its use” nor “work towards”. It has to stop.

The Promise is a ten-year plan, but it is to be delivered in stages. In March 2021, Plan 21-24 was released, detailing the first stage. Plan 21-24 included this commitment: “The formal and informal exclusion of care-experienced children from education will end.” That was listed as an outcome to be achieved by 31 March 2024. Note again – “will end”.

Earlier this year, The Promise oversight board's first report was published. It's pretty critical on exclusions. It says: “Outcomes for care-experienced children are not good enough, and there continues to be no alignment with the promise to end school exclusions.”  As it points out, there is no way of knowing the scale of informal exclusions - which by definition are not recorded.

The Scottish Government has published its plans for delivering on The Promise. However, on exclusions, there is nothing which gives me any confidence that the promise on exclusions will be kept.

The Scottish Government commits only to “ensure that the use of exclusion of care-experienced pupils only takes place, when all other approaches have been exhausted”.

But this is already the position in national and local policy across Scotland, as set out in the 2017 guidance and in previous iterations. That exclusion should only be used as a last resort is nothing new. It has been Scotland’s position on exclusions for any pupil (looked-after or not) for as long as I have been practicing in this area of law.

Keeping the Promise also states: “We will support attendance and reduce exclusion of care-experienced children from education.”

Not only is there nothing new here, these statements are self-evidently incapable of achieving the ends set out in The Plan 21-24.  You cannot end exclusions, while committing only to reduce them, and explicitly allowing for them to take place in vaguely defined special circumstances.

Worse, the wording used in “Keeping the Promise” will, I fear, be used by schools and education authorities as justification for continuing to exclude pupils from school. In an Orwellian ironic twist, “Keeping the Promise” may end up as the main tool used to justify breaking The Promise.

As an aside, the idea that exclusion can be used in extreme circumstances relies on an assumption that it is an effective tool which can have a beneficial effect. There is no evidence to support this proposition, either nationally or internationally. The research of Professor Gillean McCluskey at the University of Edinburgh is the best place to start further reading on this point.

In correspondence with Scottish Government on this, they say that Keeping The Promise is “not intended to set out the full range of actions which we will take on this issue.”

It is not at all clear what this range of actions might include. Neither Keeping The Promise, nor any subsequent publication I am aware of has set out any of this.

We are running short on time to deliver on this specific, but important, part of The Promise. As things stand, a commitment has been given and no meaningful steps taken to meet that commitment.

Promises are easier to make than to keep but, at the moment, it doesn’t even look like we are trying.

Iain Nisbet is a solicitor specialising in education law