Schools (Specification and Disposal of Articles) Regulations 2012
(Limited Text - Ministerial Extracts only)
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Lord Hill of Oareford
That the Grand Committee do report to the House that it has considered the Schools (Specification and Disposal of Articles) Regulations 2012
Relevant Document: 39th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)
My Lords, these regulations, which were considered in another place by the First Delegated Legislation Committee on 28 February, take us back to some of our debates about behaviour during the passage of the Education Act 2011. They are separate from the provisions in the Education Act that we discussed at some length in this Room last summer but they are part of our efforts to make sure that schools can provide calm and safe environments in which teachers can teach and pupils can learn.
The Government first announced our intention to strengthen teachers’ powers to search pupils, including making these regulations and giving teachers a more general search power, in a Written Ministerial Statement on 7 July 2010. Then, in our schools White Paper, published in November 2010, we said that we wanted to make sure that teachers and head teachers,
“can establish a culture of respect and safety, with zero tolerance of bullying, clear boundaries, good pastoral care and early intervention to address problems”.
Strengthening teachers’ powers to search is an important part of this process. It means that they have the powers they need to maintain and promote good behaviour in their school.
Perhaps I may set out briefly what these powers mean in practice. Authorised members of school staff can already search for knives and weapons, alcohol and illegal drugs, and they can also search for stolen items. These powers were introduced as a result of the Apprenticeships, Schools, Children and Learning Act 2009. New general search powers included in Section 2 of the Education Act 2011 extend these powers further. From 1 April, head teachers will be able to authorise staff to search pupils for any article which has been, or is likely to be, used to commit an offence or cause harm or damage to property. Authorised school staff will also be able to search for items that are banned by the school and which are identified in the school’s own rules as items that may be searched for.
The regulations that we are discussing today build on the existing provisions simply by adding tobacco and cigarette papers, pornographic images and fireworks to the list of prohibited items. I think we would all agree that none of these items should have a place in our schools. We think that in the interests of safety and for the avoidance of doubt it is necessary for teachers to have the power to search for them, confiscate them and dispose of them appropriately.
We think that giving school staff the ability to search pupils for tobacco and to confiscate it will help to protect the health of pupils. Potential hazards are obviously involved in taking fireworks into school. That is why we want to provide school staff with a specific power to search pupils for fireworks and to be able to confiscate them.
The purpose of including pornography is to ensure that schools can take effective steps to deal with the possession or distribution of pornography by their pupils. Searches could be made for any item that authorised staff members have reasonable grounds for suspecting contained such an image, including books, magazines or electronic devices. For example, if a teacher reasonably suspects that a pupil has a pornographic image on their mobile phone, the regulations would enable the teacher to search for that phone and to search its content for the pornographic image. This is a sensible approach since electronic devices are increasingly replacing books and magazines.
Some of your Lordships may have concerns about examining the content of electronic devices and the risk that staff may, for example, access data that belong to the parents. The fact that a pupil claims that the device is not theirs does not prevent staff examining it. However, in order to examine it they must have reasonable grounds for suspecting that a device contains a pornographic image. Revised departmental advice to schools will explain teachers’ obligations under Article 8 of the European Convention on Human Rights and remind them that pupils have a right to expect a reasonable level of personal privacy. The revised advice will be published on 1 April.
The regulations also set out how the additional prohibited items should be disposed of. School staff can keep or dispose of tobacco and fireworks. Giving staff the flexibility to decide whether to retain or dispose of an item means that they will have discretion to decide on the most appropriate course of action to take in any given circumstance. Pornographic images may be disposed of, unless their possession constitutes a specified offence—for example, if they are extreme or child pornography—in which case they must be handed to the police as soon as possible. Where the image is found on an electronic device, this could mean deleting the image or retaining it so that the article that contains the image can be delivered to the police. This approach is consistent with that taken in the Apprenticeships, Skills, Children and Learning Act 2009 in respect of the disposal of illegal drugs and stolen items.
The Government’s role is to give schools the freedom and support that they need to provide a safe and structured environment. Strengthening teachers’ powers to search for, confiscate and dispose of a range of disruptive items is a key part of this. The regulations specifically identify tobacco, fireworks and pornographic images as items that may be searched for. The person conducting the search would be able to use such force as is reasonable under the circumstances to search for these items if they judged it necessary to do so. The Government believe that given the intrinsically harmful nature of these items it is necessary to identify them specifically in regulations. This builds on the approach taken by the previous Government and will mean that teachers’ power to search for them is beyond doubt and does not rely on the pupil’s intention in having the item or on the item being banned by the school rules. I commend the regulations to the Committee.
Baroness Walmsley
My Lords, while I support the coalition commitment to giving heads and teachers the powers that they need to ensure discipline in the classroom and promote good behaviour, I cannot resist the opportunity that this statutory instrument gives me briefly to restate an opinion that I expressed many times during the passage of the Education Act 2011. This commitment is much better achieved by good-quality teacher training and good control in the classroom than by any extension of the powers to search. Also, searching of pupils should always be done with a witness and, above a certain age, should always be carried out by someone of the same gender. However, having not resisted the opportunity to say that again—I suppose there is some difference between the two parties in the coalition—I support the Government’s approach.
Looking at the regulations themselves, I notice that in Regulation 3 the items listed include tobacco and cigarette papers. Next to that I have written “health”. Item (b) is “a firework”, next to which I have written “safety”, while item (c) is “a pornographic image”, next to which I have written “equality, respect, bullying and violence”. The great big bracket that links all three together is PSHE. Therefore, I wonder whether the Minister can tell us a little about how the internal review of PSHE is going on. This is quite relevant to this regulation. It would be nice to think that if in a lawful search of pupils in schools, following implementation at the beginning of April, any of those dangerous items were found on them, they would be given extra PSHE. An understanding of the dangers inherent in having all those items in school is covered by good quality PSHE education.
I have one other point for the Minister. The department’s guidance, Screening, Searching and Confiscation: Advice for Head Teachers, Staff and Governing Bodies, is to be updated. Will he confirm that it will contain advice on children with special needs—for example, children with autism or those who the school knows may have been subjected to physical or sexual abuse? The approach of an adult to such children could cause rather outrageous behaviour which is not the child’s fault and might escalate a situation which a little understanding could prevent. It is important that teachers understand that if they are going to search children who have or have had those problems, they need to be cautious in doing so, even though it is lawful and legitimate.
Baroness Hughes of Stretford
I apologise to the Committee, and in particular to the Minister, for being absent at the start of the debate. I mistakenly took a phone call at the wrong time and missed the change indicated on the monitor, which I had been watching. I hope that I missed nothing crucial—
Baroness Hughes of Stretford
My apologies again. As the noble Baroness, Lady Walmsley, said, we debated the substance of the policy when the legislation was debated in Committee and I do not intend to reopen it. I shall confine myself to the regulations and I want to put two particular points to the Minister. The first concerns the guidance on the use of the powers, which will be forthcoming on the back of these regulations. I should be grateful if the Minister would clarify the current position.
When the guidance Screening, Searching and Confiscation, published earlier this year, was debated in the other place, the Minister said that it would be updated to reflect the more recent changes to the law and that new guidance would be published before implementation on 1 April this year. Will the Minister confirm that? The guidance written so far, which I have looked at on the website, says nothing about what will constitute the reasonable suspicion that a teacher must have to justify a search without consent. It says:
“The teacher must decide in each particular case what constitutes reasonable grounds for suspicion”,
and gives two examples. One is hearing other pupils talking about an item, which is fairly uncontentious. If a teacher hears talk from other pupils, that is fairly obviously reasonable grounds for suspicion. The other example is that,
“they might notice a pupil behaving in a way that causes them to be suspicious”.
That is fairly wide because it could be anything. Will the Minister confirm that the guidance will make it clear, as I believe it should, that after such a search without consent, the teacher must be able to say specifically what constituted the reasonable grounds for suspicion, and that that should usually be hard intelligence or evidence rather than the teacher just feeling suspicious? For example, what would be reasonable grounds for suspicion to justify taking away and looking through a phone, a laptop or an iPad? A pupil might be behaving inappropriately in a class, fiddling with the item or looking at e-mails, but surely that alone would not justify reasonable suspicion of, for instance, the presence of pornographic images to justify a search without consent. There is a lot of grey area here, and I should like to be reassured that the guidance will help teachers to define the thresholds for suspicion in such circumstances.
Regarding another point on the guidance, I could not see any distinction in the current guidance between the approach to situations involving children of different ages—younger children as opposed to older children—in secondary schools. Will the guidance also address that issue?
My second substantive point concerns recording and monitoring the use of these powers. In the other place, the Minister said that the Government had no plans to monitor the use of the powers or to require schools to keep a log of incidents in which the powers have been used. I am particularly concerned about the powers to search without consent. I am in favour of giving teachers these powers, but this extension of powers should require schools to keep a record of the incidents in which they are used.
One may think about similar situations, for instance, in children’s homes—and I have visited very many in a previous life. I always asked to look at the incident log to see whether discipline had been used and recorded appropriately. The use of police powers requires the recording of incidents. In any part of society where professionals in authority are given powers of search and confiscation over other people, it seems only right, and a necessary and visible counterbalance to those powers—necessary though they are—that a record should be required. The Minister may come back and say something about not wanting to burden schools, but this is not about burdening schools with unnecessary requirements. Keeping a record is a reasonable and essential counterbalance to the extension of powers, and we should require schools to do so.
Similarly, there should be a requirement that data using those records be kept for monitoring, so that, for instance, any differential deployment of these powers in respect of different groups of children will be visible. We know the concern that police stop-and-search powers are used disproportionately on young black men. We would want to know—would we not?—if, however unconsciously and inadvertently, these powers of teachers could be shown to have been used differentially in relation to specific groups of children rather than others. Yet, if the information is not recorded by schools, and is not monitored by the Government and inspected by Ofsted, we will have no way of knowing just how these powers are being used, whether they are being used appropriately and whether, however inadvertently or unconsciously, specific groups of children are the subject of these powers in a differential way.
Lord Hill of Oareford
My Lords, I congratulate my noble friend Lady Walmsley on her ingenuity in raising some issues that are possibly within the scope of the regulations. I know her feelings on the subject, which we debated at length. The only thing that I would say is, as the revised guidance that she will have seen makes clear, the provisions that allow search by the opposite sex are very much to be used in exceptional circumstances, and the assumption is that in nearly every other circumstance that will not be the case. We had that debate previously.
So far as the PSHE review is concerned—again, the way in which my noble friend managed seamlessly to move from one of her favourite topics to another through the means of the regulation was a wonder to behold—she will know that we had hoped to be in a position at the beginning of the year to come forward with proposals on how we can improve PSHE, but the timescale on reporting back on the national curriculum generally has slowed down, and the proposals on PSHE are being aligned with that. All that I can say is that the issue is still work in progress, and proposals will come later in the year.
As for the guidance, which relates to a point made by my noble friend and by the noble Baroness, Lady Hughes of Stretford, we are on track to publish it on 1 April. However, given some of the points raised, it would be sensible if I shared it in advance of publication so that we can ensure that it deals with the issue clearly and my noble friend can see whether it addresses the question of searching children with autism, for example.
On the point about recording and monitoring, the noble Baroness was right. It is our view that we do not need to set up a detailed and complicated system of recording and monitoring. On her specific point, I understand the concern about what might be a disproportionate effect on some groups—particularly, for example, black boys. The search powers have been in place since 2007 and were extended again in 2009. The fact that we have not collectively been made aware that there is a particular problem with the way that they are exercised gives some comfort. We would rely on parents, staff and others to make their concerns known. If they were flagged up with us, we would want to act on them because, like the noble Baroness, we want to ensure that the powers are used, first, proportionately and, secondly, in an equitable fashion.
On the noble Baroness’s fair point about what is the definition of reasonable suspicion, there is no definition of reasonable suspicion, for fairly obvious reasons. There are many things in legislation that it is hard to define precisely but, over time, practice and custom grows up. We do not have plans to specify that, but I hope that the guidance which, as I said, I will happily share with the noble Baroness, will provide some help in that area so that teachers will be clear on what they are able to do and what they are not.
I hope that that gives some satisfaction and that we will be able to approve the regulations.