Education Bill

Baroness Massey of Darwen Excerpts

Tuesday 18th October 2011 Lords Chamber

[Baroness Walmsley]

My Lords, I wish to speak to my Amendment 8 to Clause 2 and Amendment 13 to Clause 3. Amendment 8 addresses same-gender searches and teachers or other staff searching alone in schools. Amendment 13 refers to colleges in Clause 3.

In Committee, the Minister pointed out that in primary schools with staff of all, or nearly all, one gender—usually women—it would usually be very difficult to find a member of staff to search boys. Of course, the opposite may also be true in some single-sex boys’ schools. We have taken that objection on board and come forward with a compromise which we hope will find favour with the Minister. Amendment 8 would allow opposite-sex searching of children under 12 as long as there is a witness of either gender present. I agree with the noble Baroness, Lady Jones, that that is vital. However, we hold to our view that searching a child without a witness opens up the teacher and the child to danger in a quite unnecessary way. We accept the extension of the items for which teachers can search, and that these will be specified in published school rules. However, we feel that children’s privacy and dignity should be protected under their rights under the UN Convention on the Rights of the Child, and that teachers should be protected from false allegations and possible physical harm if a child does indeed have a weapon in his pocket. If such a thing is suspected, a teacher would be very foolish indeed to search alone.

Like the Government, we trust professionals: 99.9 per cent of teachers will use these powers sensibly and carefully in their own interests and that of their pupils. However, we do not believe that legislation should allow something to be done lawfully which is quite wrong and dangerous. I fear that a tiny minority may not behave with the wisdom we hope for.

I wish to say something about the draft guidance that has been sent to us. Guidance is vital—all Governments think that is the case. Indeed, on many occasions when I pressed the previous Government to include measures on the face of a Bill, they said that it was absolutely fine to have them in guidance, and this Government are no different. Therefore, it is important that we work on the guidance. As the noble Baroness, Lady Jones, has just said, the JCHR has also asked that the guidance should be very clear.

As we have said, as the child gets older his right to privacy increases and the guidance mentions this on page two. However, there is no explanation of what is meant by Article 8 of the ECHR, which enshrines this, and how this could affect a searching scenario. Neither does it say that this right means that, wherever possible, a person of the same gender should search a child. On page 5 the teacher is told that a child should be searched by the same gender in the presence of a witness with limited exceptions. It is explained that a search of the opposite gender can take place without a witness if the teacher believes that there is a risk that serious harm will be caused to a person if the search is not carried out immediately, but there is no warning to the teacher to consider whether, in doing so, she is putting herself or nearby pupils at risk. There is no warning to the teacher to consider whether he is opening himself up to malicious allegations of inappropriate touching. I find it difficult to understand that given that the Government are protecting teachers from publication of allegations in Clause 13, but in Clause 2 of the same Bill they are potentially giving teachers a green light to do something that may risk their reputation even more, without such warnings in the guidance. It is not even put in a positive way, such as, “where at all possible, you should summon another teacher”. Nowhere is good practice mentioned.

On the matter of training, on pages 5 and 6, the guidance does not really encourage head teachers to ensure that staff authorised to search have adequate training. They only have to “consider” the matter. There is no mention of the sort of situation management training that takes place in young offender institutions, yet teachers are to be allowed to do the same things as the staff there.

Teachers do not want to do these things. It has often been said that they will completely alter the basis of the teacher-pupil relationship. The noble Baroness, Lady Hughes, makes a very good point about the need for sensitivity, understanding and knowledge in searching children with special needs or disabilities.

On page 10 of the guidance, reference is made to the power to examine and erase electronic files on such as mobile phones. While this may be perfectly okay in a case of simple bullying, there are more serious situations in which deleting a file may be deleting evidence in a criminal case. My noble friend Lady Benjamin will, I think, have more to say on this. I suggest that a single person’s decision about this is not good enough; reference should at least be made to a senior member of staff and the guidance should say so. I also think that parents should be consulted before this is done; this would involve parents in the school’s discipline arrangements, which is always a good thing.

The guidance is currently totally inadequate and I hope that the Minister will tell me that the department is willing to strengthen it. I am prepared to continue to work with officials until I am satisfied that the guidance truly helps teachers to make these very serious judgments. If we get this right, the situations that we fear will be very rare indeed, because teachers will know what is good practice and what is bad practice. Will the Minister allow his officials to continue to work with us in order to achieve the very good-quality guidance that this Government and the previous Government both wished for?

[Baroness Massey of Darwen]

My Lords, this is indeed a complex issue, as illustrated in the previous speeches. It was debated extensively in Committee and many issues have been raised again today. I was not planning to intervene here, but I am prompted to do so by the number of teachers who have contacted me and whom I have spoken to about searching. I wonder whether the Government realise and understand just how concerned teachers are about this and how distasteful they find it to have to do this in school. It is not only an issue of the rights, mentioned many times already today, of children, schools and teachers; I think it is a matter of common sense. There is a risk that searching a child in a school could destroy trust between teachers and pupils and have a detrimental effect on the ethos of a school. Many teachers have said exactly that.

I have one small anecdote: I was speaking today to the Children’s Commissioner, who said that she had also had many representations from teachers about this issue. She told a story about a 12 year-old boy who was on a newspaper round with a friend of his. The newspapers have to be cut out of a plastic band when they are given out for distribution to the boys and girls. One of the boys had put the knife used to cut the band into his pocket by mistake and ended up in school with it. He was searched because someone said that he had a knife and he was excluded from the school. There is a great danger that without excellent guidance, that kind of thing will go on.

Of course, there should be training and a careful exploration of the issues within the school. But it is important to have strong, clear rules about what is brought into school and strong enforcement of those rules, involving parents and the community. That should be emphasised in guidance—in fact, it should be the first lines of any guidance on prevention. Many good schools already do that. They are tough about bringing things into schools because that is in the school rules. I hope that the Minister will consider the amendments because this is a very serious issue for teachers and schools, and liable to be very destructive unless handled carefully.

[Lord Sutherland of Houndwood]

My Lords, I wish to comment briefly on Amendments 8 and 10, and to give my warm support to Amendment 8. We had an important debate on that amendment in Committee and the Minister pointed out the difficulties with primary schools. The difficulties have been met in a reasonable way, I believe, and I hope that in the spirit of good compromise all round we might move with the amendment and see it eventually in the Bill.

On Amendment 10 and following the remarks of my colleague, the noble Baroness, Lady Walmsley, guidance is immensely important—at least as important as what is in the Bill. I hope that the discussions that she seeks can be taken forward, and I hope that guidance, especially from the Secretary of State going down to schools, can be liberally sprinkled with the word “normally”. This is a very important word. It is not a weakening but indicates what the standard is and what good practice is meant to be. It indicates strongly that if the guidance is not accepted in any set of school rules or school practice, there has to be a very good reason that can be stated either when the inspection system requires it or alternatively, sadly, when it comes to exclusions or even court cases. I stress that the difficulty we had in Committee was over legislating for every item that might be searched for or for every individual case in which a search might be made.

It is difficult to specify each case. At one time who would have dreamt that we were supposed to use plastic cutlery on airlines? Yet that has come to be. We would rather have general guidance indicating good practice and good sense with the use of the word “normally” and therefore a requirement to give a reason for a change in what has been regarded as good practice until now. I ask the Minister to look closely at Amendment 10.