Education Bill

Baroness Jones of Whitchurch Excerpts

Tuesday 28th June 2011 Grand Committee

[Baroness Walmsley]

My Lords, in moving Amendment 12, I wish to speak also to Amendments 19, 27 and 32 in this group. My noble friend Lady Jolly will speak to Amendment 20.

Clause 2 extends the power of teachers and heads to search pupils and repeals some of the safeguards in legislation regarding searches in schools. These searches constitute a significant intrusion into children’s privacy which is protected under the UN Convention on the Rights of the Child and under the Human Rights Act. Therefore, there is an enormous onus on the Government to justify them.

I welcome the Government’s commitment to give due consideration to the provisions of the UN Convention on the Rights of the Child when making new policy and legislation. I urge the Minister to ensure that when this Bill leaves your Lordships' House it complies fully with this important convention. I am particularly concerned with regard to Article 28(2) of the convention which states that we must,

“ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention”.

When the powers to search were extended in 2009 to include alcohol, drugs and stolen property, they went ahead without any published evaluation of how the previous powers were working. This is happening again, which causes me great concern. We need a thorough review of these powers with sufficient detail for us to determine whether any particular groups of children are being searched more frequently than others. It is essential to avoid any possible discrimination in the use of these powers.

The first group of amendments concern appropriate training. Amendments 12 and 19 seek to ensure that any member of school staff expected to search a pupil has had appropriate training before attempting to do so. My intention is to highlight the importance of proper training in such matters. When I was a teacher, I would not have dreamt of attempting such a thing without proper training, and I am sure that your Lordships would have felt the same in my position. Many teachers are currently reluctant to use the powers that they already have to search pupils, and would not have the confidence to do so even in the circumstances where it may seem necessary to prevent imminent harm to others unless they had confidence that they knew what they were doing. No teacher or member of staff should be expected to search a child without good-quality training, especially since current legislation allows them to,

“use such force as is reasonable in the circumstances”.

Training is essential, particularly in delicate situations where the pupil has special educational needs or has particular cultural or religious concerns or is of the opposite gender from the person carrying out the search, or there is no other member of staff present—although noble Lords will know that I do not approve of either of those last two situations.

It is not just about training. Information about the child is important too. How is a child who has been touched inappropriately or even abused going to react if someone approaches to search their person? That could escalate a fairly low-level problem into something violent and critical. Training should ensure that searches are conducted in such a way as to avoid harm to the child being searched, as well as to avoid unfounded allegations of improper behaviour by the teacher or lecturer.

Amendments 27 and 32 cover the same matters relating to searches in FE colleges. It is true, however, that most colleges have specially designated and trained security staff who would probably be called in to conduct a search if necessary. There are particular issues in colleges that may need to be addressed differently from searches conducted in schools, as many of the students may well be over 18. The current DfE guidance that was published in 2007, called Screening and Searching of Pupils for Weapons: Guidance for School Staff, mentions colleges only briefly, on page 4, which is insufficient.

Further training and advice are essential in order for staff to understand the powers under this clause. Such training should ensure that searches are conducted in such a way as to avoid harm to the child being searched, as well as to avoid unfounded allegations of improper behaviour by the teacher or lecturer. In colleges there may be only a very few years between the searcher and the searched. Such training could also usefully include managing potentially inflamed situations, identifying particular cultural or religious sensitivities, de-escalation techniques and risk assessment.

I know that the Association of Colleges is not keen on my idea of statutory training; it has said so. It says that unqualified cowboy operations will be set up to provide so-called training and might give teachers and lecturers an unfounded sense of confidence. My answer to that is that the college principal has a duty to ensure that all CPD is of good quality by getting recommendations and feedback and by checking qualifications. The association suggests that bad things can happen if people have been inappropriately trained. My opinion is that bad things can happen if people are not trained at all. We should put this requirement in the Bill. I beg to move.

[Baroness Jones of Whitchurch]

My Lords, as a number of amendments are in our names, I thought that it would be sensible to get up at this stage and speak on Amendments 15, 18, 26, 29, 30 and 31. In introducing these amendments, I should make it clear that we understand and support the Government’s stated intention to support schools in improving discipline. As noble Lords will know, the previous Government took the first steps towards bringing in new powers to help teachers enforce discipline, and at that time they were broadly welcomed by the profession.

Our concern with what is being proposed today is that, although on the face of it the Bill seems to build on the legislation, it takes away the important checks and balances that had been built in to protect both pupils and teachers. It remains unclear why proposals to extend those powers have been put before us.

Many of our comments echo those of the noble Baroness, Lady Walmsley. Amendment 15 seeks to ensure that staff undertaking searches are appropriately trained to search all pupils, particularly those with special educational needs and disabilities, in a way that maintains the dignity and rights to privacy of everybody, in order to foster a school environment of mutual respect. Amendment 18 also makes it clear that searches should be carried out by a member of the senior management team. In the Commons evidence that we read, this was described as good practice by a number of head teachers.

The Children's Society and the NUT, among others, made a compelling case for staff doing searches to be trained and given advice on the effect of searches on young people, including the effect on their self-esteem and confidence. In addition—I am sure that we will hear more about this—Ambitious about Autism told us that staff require proper training to carry out safe searches on children with autism so that they understand the children's potential issues, for example around physical contact. The Children's Rights Alliance for England reminded us that searches can be very invasive and unpleasant experiences, causing children embarrassment, anxiety and humiliation. In addition, as the noble Baroness, Lady Walmsley, said, children with a history of physical or sexual abuse have a very different experience of searches; there is a need for training in that respect. It is also vital that staff carrying out searches on children with special educational needs and disabilities have an awareness of those issues and make reasonable adjustments for those needs.

We are concerned also that the new powers could put staff undertaking searches at risk. For example, the NUT highlighted a concern that, without training, teachers could be vulnerable to unfounded allegations of “improper behaviour”. Again, this underlines the case that we made earlier for searches to be carried out by someone of sufficient seniority that their intention and authority cannot be brought into question when the searches are carried out. This may be best practice in many schools, but the amendments build in safeguards for all pupils, particularly the most vulnerable, to ensure that their needs are recognised and that they are treated with respect.

Finally, Amendment 26 would require schools to keep a written record of all searches, including equalities information on the SEN, ethnicity and disabilities of the pupils being searched. Just as the police powers of stop and search were found to be disproportionately targeting certain ethnic groups, there is a risk that the same thing could happen unintentionally in our schools. Without proper records, we will not be able to monitor and follow up on the consequences of those trends. This concern has been highlighted by the Runnymede Trust, which stated:

“Runnymede is concerned that this power could result in disproportionate numbers of Black children being searched. If Black pupils are searched more than other pupils or feel unfairly targeted, trust may be undermined, potentially leading to more negative behaviour in the classroom”.

The amendment will enable that record to be kept and research to be pursued to follow up on it, both within the school and more widely, to make sure that unintended consequences do not arise. It will enable us to ensure that minority ethnic groups are not disproportionately targeted, and that groups such as pupils with SEN or disabilities are also not disproportionately targeted unintentionally. I hope that the Minister will acknowledge the sense of the amendments and the comfort that they might bring by protecting the interests of vulnerable groups who are concerned about how the new powers will operate.

Other amendments to Clause 3 in this group—Amendments 29, 30 and 31—mirror the amendments that we laid to Clause 2 but relate to further education. The same arguments apply in terms of checks and balances, but as the noble Baroness, Lady Walmsley, said, because of the potential narrowing of the age gap it is particularly important that teachers are trained to treat the students with respect and be aware of their vulnerabilities.

I have one final quick comment. I am aware that a guidance note is in full consultation from the department at the moment on the powers to search without consent. I am sure that the Minister will say, “Do not worry, because this document is being consulted on”, but it increasingly gives us concern that we are being asked to make legislation now, not further down the line when some consultations will come to fruition. It is asking a lot of us to trust that those consultations will come out with the right answer. We need to ensure that we get the legislation correct now, when we have the chance to do so.

--- Later in debate ---

[Lord Elton]

I use just a second to pick up one phrase that my noble friend used earlier: discipline is not only about punishment. I hope that the Committee and the Government will bear in mind that in matters of keeping order and quelling disorder, punishment is the last resort. Good order depends on a whole school behaviour management programme understood and operated by the whole staff. We need to remember that that is the prime source of good order and that punishment is what has to be brought in when it fails.

[Baroness Jones of Whitchurch]

My Lords, I want to make just a couple of quick points, given the lateness of the hour. The first is that the draft guidance that seems to be floating around, the status of which I am sure that the noble Lord will know better than I, explicitly states under the heading of training for school staff that there is no legal requirement for a head teacher or authorised member of staff to be trained before undertaking a “without consent” search. That is a statement of fact because there is no legal requirement, but if you are issuing guidance, would it not make sense to say something like, “But we think it is a jolly good idea”? It is almost a prescription not to bother to do the training. I may have the status of the guidance wrong, but my point is worth taking on board.

The second point concerns the final issue that the Minister raised, which was about keeping records. There was a contradiction with what a number of noble Lords said about the need for consistent record keeping so that Ofsted can check what is going on and the department can have an idea of whether there are unforeseen consequences of the searches. We all want to know what the big picture is, and we can only do that if we have consistent records. The noble Lord said that we should trust schools to keep their own records, but there is a contradiction here—and also with the requirement under the Equality Act that he talked about. I will return to the issue about what schools should be required to do in terms of keeping records to comply with fairness and meet the requirements of the legislation. I do not think that we have fully fleshed that out.

[Baroness Walmsley]

My Lords, this has been an excellent and wide-ranging debate. I thank all noble Lords who contributed, and in particular the Minister for his reply. Before I make a few comments, I will make one correction. I mentioned that it was the Association of Colleges that was against the statutory requirement for training: I meant to say that it was the Association of School and College Leaders. I am sure that Hansard in its usual inimitable manner will correct that for me.

I will pick up on a few disparate points from the debate. First, a number of noble Lords raised the issue of what would happen if a child were wielding a knife. I believe that a teacher or anybody else in the room would have a common-law right to intervene to protect themselves or any child there: they would not need these searching powers. Anyway, you do not need to search for something that is in full view.

I thank the Minister for his assurance that no teacher will be pressurised into doing a search. I am aware that this was in previous legislation. However, the Government are repealing a number of checks and balances in previous legislation, so I was a little concerned that they might be repealing that.

I very much agree with the points made by my noble friend Lady Benjamin about stop and search. She made her points very passionately. These are things that we must bear in mind. I asked for a very detailed review so that we can make sure that no discrimination is occurring. Of course, if the incidents are reported and recorded, as the noble Lord, Lord Sutherland, suggested, it will be very easy to collect the information. I know that the Government are trying to ease the bureaucratic burden on schools and are not implementing the duty in the previous Bill to record all incidents, but incidents of this nature are really quite serious and perhaps it should be suggested in guidance that best practice should dictate that these sorts of things are recorded under the school’s judgment.