Education Bill

Baroness Jones of Whitchurch Excerpts

Thursday 30th June 2011 Grand Committee

[Baroness Walmsley]

I shall speak also to Amendments 21, 22, 23 and 24 in my name which are grouped with Amendment 13. We ended our session on Tuesday by reaching Clause 2. We had a very interesting debate about whether there should be statutory training for any teachers who are considering doing a search of a child. This and the subsequent group of amendments refer to other aspects of the measures which extend the powers to search. This group is about tightening up what can be searched for and for what reasons; the next group is all about whether you can search alone and children of a different gender.

Amendment 13 probes issues concerning the burden of proof and highlights the potential problems that arise for schools as a result of the expansion of the powers. I am sure that head teachers and other members of staff would wish to have that power clearly defined and be without fear of contravening the Human Rights Act or prosecution for an offence against the person. Teachers are not law enforcement officers and they have no reason to risk assault upon them by insisting on searching a pupil who is capable of a violent reaction. Equally, few teachers will wish to use the power if they feel that it will jeopardise their relationship with pupils and generate a climate of suspicion in their school.

A simple Google search of the phrase “primary school rules” illustrates the need for more careful consideration of these provisions. They vary enormously. I wish to insert “reasonably” so that the Bill will say that a search can be made for,

“any other item which the school rules reasonably identify as an item for which a search may be made”.

Some school rules do not allow toys to be brought into school, but it would be quite disproportionate to body-search a child for a little soft toy brought in for comfort. As the Bill is not clear on what exactly is meant by school rules, many schools might feel that they need to revisit their rules, such as: sweets, cans and glass bottles are not allowed in school. When they do so, I would remind them of their duty to consult the pupils. In any case, rules are more likely to be followed if the children have been involved in their drafting and have signed up to the need for them.

The Joint Committee on Human Rights has called on the Government to issue guidance which makes it clear that,

“only items capable of being disruptive to teaching or learning, threatening to the safety of pupils and teachers, or which breach criminal law can be identified in school rules as items for which searches of pupils can be made”.

That is the sensible approach, and inserting “reasonably” indicates that schools must not go over the top.

Amendments 21, 22 and 23 were suggested by the JCHR in its report on the Bill. The committee criticise the very wide powers to examine and erase data or files on a mobile phone or other electronic device. We all want to give heads and teachers the powers they need to keep discipline and to prevent bullying, which is why I do not oppose the extension of these powers. It is clearly legitimate for a teacher, if he has reasonable cause for suspicion, to see whether there are any files on a confiscated phone that could be used for bullying or distribution of images that the subject of the images would not want the world to see—even pornography. However, we need checks and balances. The JCHR points out that there is nothing in the Bill to restrict the scope of the powers in relation to the purpose for which the power is to be exercised. That should be linked to the reasons for the search and the justification for the suspicion that an offence has been, or is about to be, committed.

Given the potential for serious interference in the pupil’s rights to respect for a private life, the JCHR proposed Amendments 21, 22 and 23, about which I questioned the Minister at Second Reading. In the absence of an answer, I have tabled them myself. The amendments make it clear that it must be established that the device is likely to be used for something that is either unlawful or contrary to the school rules.

I tabled Amendment 24 because I remained concerned about the power to erase files. There may be all sorts of things on the phone that are very private to the family—things that the family would rather the school did not know. There may also be things on the phone that the pupil may not want the school or his parents to know—for example, that he or she is gay. Let us bear in mind that the pupil and his phone may be entirely innocent. Indeed, pupil A reporting to a teacher that pupil B has some questionable images on his phone may, in itself, be an act of bullying by A on B—trying to embarrass Bill or get him into trouble. Pupil A may want to expose the fact that B is gay. I would call that homophobic bullying, and this Government have made clear their determination to stamp that out. I have tabled Amendment 24 to ensure that guidance includes consideration of the private life of both the pupil and his family, and the circumstances in which it is appropriate to involve parents in the deletion of files.

I ask my noble friend the Minister whether the Government will conduct a review of the existing search powers—as was recommended by Sir Alan Steer to the previous Government, but not carried out, before they extended the powers. We need more post-legislative, as well as more pre-legislative, scrutiny. Will the Government publish draft guidance relevant to the search powers before Report stage? Will such guidance be statutory? Will the Government accept these amendments? I beg to move.

[Baroness Jones of Whitchurch]

My Lords, I support the amendments of the noble Baroness, Lady Walmsley. I shall speak also to our Amendment 25. As has already been identified, under the previous legislation school staff already have the power to search for and seize from pupils prohibited items, including weapons, alcohol, drugs and stolen goods, and we are very conscious of the sensitivities in extending those powers.

Therefore Amendment 25 places on the Secretary of State a requirement to give more explicit guidance as to what should be included in the school rules, and on the items for which searches can be made. This amendment would very much enable some of the concerns of the noble Baroness, Lady Walmsley, to be followed through. I also echo her point that if guidance were to be produced, it would be helpful if it were in the form of draft guidance on which we could all comment.

In addition, there is currently a statutory definition of school rules in maintained schools, but there is no statutory definition of school rules in independent schools, which will, in due course, include academies and free schools. Therefore, this underlines again the case for the Government to consider and advise very carefully on what can and cannot be banned under school rules for all state-provided schools. As the noble Baroness, Lady Walmsley, has mentioned, this was picked up in the report of the Joint Committee on Human Rights, which said:

“There is a risk of the new provision falling foul of that requirement”—

to protect pupils—

“unless the new power to search is circumscribed in some way by reference to the purpose for which such a search may be made”.

The noble Baroness, Lady Walmsley, quoted some useful paragraphs from the report, but that one is also helpful.

When we debated this on the first day in Committee, a case was well made on the issue of mobile phones. For one person a mobile phone is some sort of weapon or something that can be used in a derogatory way; for others it is a teaching aid. We need to be clear about pupils’ reasons for carrying mobile phones in school. In some cases it is a link to important caring responsibilities and so on. Therefore, we must be very careful about proscribing some of these things and the wording that is used.

We have seen the 15th report of the Delegated Powers and Regulatory Reform Committee, which was handed out as we came in. It draws the attention of the House to the fact that the department’s own memorandum on its delegated powers,

“does not explain why it is thought appropriate that the list of articles in section 550ZA(3) that may be searched for … should in future be capable of being supplemented by the school in question, apparently to include any kind of article whatever”.

Again, the Delegated Powers Committee questions the extra powers that the Government are trying to give themselves without being explicit about what the articles should be and what it is appropriate to take into a school. Therefore, I hope our Amendment 25, which makes it necessary for guidance to be produced by the Secretary of State on what is and is not to be prohibited by school rules, is a common-sense measure. I hope the Minister will agree and that he and noble Lords will feel able to support the amendment.

[Lord Elton]

My Lords, I shall speak to Amendment 14 in this group, which addresses two angles of concern. The first is about definition. My noble friend Lady Walmsley said that it is not clear what is meant by school rules. The noble Baroness, Lady Hughes, also said that they needed definition. That is the purpose of my amendment, which requires a definition to be made by the Secretary of State. I say this trailing my coat, since there may well be a definition of school rules buried somewhere in law. The waving of the corn on my left suggests that that is the case. However, it is not only a matter of what is in the school rules, but of whose authority those rules have. School rules can be made by head teachers on their own in solitary majesty, or by the head teacher with the heads of department, and with or without the endorsement of the school governors. Each would have an effect on what is in the rules.

My second concern is that rules, if they are to succeed, should have the broad understanding, sympathy and support of the school’s pupils. Should some guidance be laid down as to how that is to be achieved? Should it be through school councils, for instance? In small primary schools with small children, the rules could be talked through at the beginning of every term and agreed to by the children. The courts will want to know what the school rules are. I regret to say that we are on very litigious ground. It is essential that the courts should have a definition before them or a great deal of money and time will be wasted by the courts in arriving at a definition of their own. That time and money should be spent by us on deciding now, or by giving the Minister the power and responsibility to define what a school rule is.

With it, I would give him the duty to get advice from somewhere on what should be in school rules in general terms, and on how school rules should be introduced in a way that means they will have the support of the school’s pupils. This is not in the amendment, although I think it will emerge on Report. Children will then think that the rules are part of the way they live. Therefore, when some rebel child starts scrawling obscenities on the walls or doing other unsociable things, it will not be just him versus the staff with an interested group of children listening, watching and occasionally egging on the baddy; it will be the school community as a whole saying, “This is not the way this place runs. This is our home. Please look after it”.

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[Baroness Jones of Whitchurch]

My Lords, I want to pursue an issue that I mentioned in passing in my introduction: that of mobile phones. I refer not to whether a child could be searched but to whether they are carrying a mobile phone in the first place. My noble friend Lord Knight made the point that in the olden days pens could be scurrilous and used inappropriately, so we have to be a bit careful about what we are proscribing here.

I believe I am right in saying that the latest draft guidance on searching states:

“Ministers have already announced their intention to make regulations to add to the list of prohibited items (cigarettes and other tobacco products, pornography, fireworks and specific personal electronic devices (mobile phones and iPods etc))”.

I read that to mean that mobile phones and iPods will be included on the list of prohibited items. I hope that we can have a broader debate on whether that is sensible in the round because, as I said earlier, mobile phones can have a range of functions in a school, not all of which are damaging or unhelpful to the education process.

[Lord Storey]

I want to re-emphasise the importance of parents being aware of the school’s behaviour management policy and I welcome the fact that that duty exists. In that behaviour management policy, it will be an important responsibility of head teachers in schools to indicate the items that pupils should not be carrying on their person.

I also emphasise the dangers of mobile phones in schools—something that I have experienced on a regular basis. The amount of bullying that goes on, and the passing of offensive messages and images, is a real problem no doubt in secondary schools but certainly in primary schools. The fact that schools, parents and pupils—one hopes through the school council—are involved in putting together the behaviour policy and understanding that will be really important for our school system.

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[Baroness Walmsley]

My Lords, I shall also speak to Amendment 28. We now move to some of the more delicate checks and balances in relation to searching.

The amendments would make it unlawful to search a child of the opposite gender and never, in any circumstances, without another member of staff being present. Amendment 16 refers to schools and Amendment 28 to FE colleges.

As the noble Baroness, Lady Jones, said on Tuesday, searches can be very invasive and unpleasant experiences that cause children embarrassment, anxiety and humiliation. In addition, searches might have different and more pronounced implications for children with a history of physical or sexual abuse, children with a disability or special needs, or children from different cultural backgrounds.

That is why I believe the person should always be searched by a teacher of the same gender and always with a witness. I am not so concerned about searches of property or lockers, although doing that alone can also open up a teacher to allegations of theft, but searches of the person open the door to allegations of improper behaviour if he or she is either alone or of the opposite gender or both. At a time when the Government have found it desirable to bring in reporting restrictions on allegations against teachers, which we will discuss when we reach Clause 13, why are they attempting to open up teachers to this sort of allegation by encouraging them to search a child of the opposite gender alone?

Clause 2(3) allows a member of staff to search a child alone if they believe that,

“there is a risk that serious harm will be caused to a person if the search is not carried out as a matter of urgency, and … it is not reasonably practicable for the search to be carried out … in the presence of another member of staff”.

I believe that those are the precise circumstances in which a search should not be carried out alone. Let us imagine the situation in which the child and the teacher are nervous and hyped up. The child might know that he has a knife or a gun in his pocket—in these circumstances, the police should be called anyway, as carrying a knife or gun is a very serious matter. However, nothing is more calculated to stimulate the child to do something silly than the pressure of an immediate and perhaps forceful search in front of their peers. It is much better to calm the matter down and send for a senior member of staff so that the search can be carried out more safely.

I know that most teachers would be entirely sensible and cautious about something like this, but we must not make bad legislation that has the potential for putting them and the children in danger by doing something entirely unnecessary. I can think of no circumstances in which it would be safe for a teacher to search a child for a knife alone and no circumstances in which it would not be possible to send for reinforcements. If the child is wielding a knife, there is no need to search for it—it is on full view. The teacher has a right under common law to defend himself and protect the other children, and so we do not need this legislation for that situation. However, even then, the teacher would be wise to send for some support.

I believe that these amendments are absolutely necessary, and I beg to move.

[Baroness Jones of Whitchurch]

My Lords, our Amendment 17 mirrors much of what is in Amendment 16, but with slightly different wording in that it reinstates the protections that were introduced with very good reasons in the first place. They were to have a witness and for searches to be carried out by members of the same sex. I very much echo what the noble Baroness, Lady Walmsley, has said in this regard. We have touched on these issues in previous debates—it has been a bit of a running thread—but it does not diminish the force of the argument or the need to firm up the checks and balances that we need when teachers are operating in day-to-day school life.

Head teachers already have the power to search pupils. The powers already give teachers and head teachers the power to search, to use reasonable force to control or restrain a pupil, to stop a pupil committing a criminal offence, to prevent injury or damage to property, and to maintain good order and discipline.

In the Commons stages, colleagues debated why these new powers were necessary in addition to the existing ones and when they would be used. The answers at that time from the Government were unclear, and the Minister, Nick Gibb, was unable to give a convincing example of when these new powers would be needed. For example, when would a teacher need to search a pupil’s possessions without a witness being present? Moreover, in the evidence-taking sessions in the Commons, Brian Lightman, the head of the ASCL, said:

“I have been a head for 15 years. I cannot imagine a situation where I would sanction any of my staff searching a member of the opposite sex without a witness present. In fact, I wouldn’t allow anyone to search a member of the opposite sex, full stop”.—[Official Report, Commons, Education Bill Committee, 1/3/11; col. 24.]

Similarly, the representation from the teaching unions made it clear that their members would be very wary of using these new powers.

Perhaps more importantly, children’s rights are paramount in this regard. Many of us will have received the mailing from an alliance of children’s charities raising concerns about the extended search powers. It rightly draws our attention to the protection of children’s privacy in the UN Convention on the Rights of the Child and the Human Rights Act. It agrees with our position that the case for extended powers has not been made. Instead, it urges the Government to conduct a review of how the existing search powers have been implemented before commencing with any new powers. To me, that makes perfectly good sense.

In addition, these powers are so broad that they give teachers greater search powers than a police office would have under the stop and search provisions. For example, in the Police and Criminal Evidence Act 1984 the police powers to stop and search require,

“reasonable grounds for suspicion, before they may be exercised, that articles unlawfully obtained or possessed are being carried”.

Under Section 60 of the Criminal Justice and Public Order Act 1994, stop and search must be based upon a reasonable belief,

“that incidents involving serious violence may take place”,

or that people are,

“carrying dangerous instruments or offensive weapons”.

We do not need to give teachers these additional powers. As the noble Baroness, Lady Walmsley, rightly pointed out, if anything this will endanger the pupil/teacher relationship and put teachers at risk. In all these circumstances, we do not believe that the case has been made for opposite sex searches and searches without a witness. Therefore, we commend Amendment 17, as well as Amendment 28, which applies the same principles to FE colleges. I shall not rehearse the arguments, but we believe that the same ones apply.

[Baroness Massey of Darwen]

My Lords, I should like to know where the parents are in this. If I were the parent of a child who had been searched at school by a same or opposite sex—but particularly opposite sex—teacher, I think I would be mightily cross if I had not been informed. If I were a head teacher, I would hate to be on the receiving end of a parent’s anger at their child being searched. The witness should ideally be a parent. Has that been thought of in the Bill? Are parents excluded from this procedure? It is an issue that should be considered.

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[Baroness Jones of Whitchurch]

Before the Minister responds, I wanted to make a quick comment in response to the noble Lord, Lord Sutherland, who raised the crisis issue. That underlines our argument, which echoes what the noble Baroness, Lady Howe, said, that surely what we need to do is to review how the existing legislation has been working so far. It has been in existence for 15 years. If there were going to be crises, they would have happened by now and we should know about them. We should therefore know what extra legislation, if anything, is needed to deal with it. I can genuinely say that there does not appear to be a chorus of demand from the teaching professions saying, “We were in this awful crisis and we were constrained from what we could do by your really unhelpful legislation”. There does not appear to be that demand, but maybe it is out there. Maybe we should do what the noble Baroness, Lady Howe, is saying and find out what is happening on the ground, but without rushing into the new proposed legislation, which opens us up to other problems and repercussions, which we have not yet fully identified.

I wanted to make the quick point that we should review first and see whether there are those crises out there.

[Baroness Walmsley]

The noble Baroness, Lady Jones, has stimulated me to emphasise the questions that I would like my noble friend the Minister to answer. I was saving them for my withdrawal speech, but it might be helpful to my noble friend if I emphasised them now. I really would like to know what sort of crisis we are talking about, because nobody has yet described to me the sort of crisis that would make it impossible for a teacher to send a child to fetch a senior member of staff or a member of staff of the correct gender.

Furthermore, what evidence is there that it is necessary to allow searches of a pupil alone, by a teacher of any gender? Like the noble Baroness, Lady Jones, I have not heard an outcry from the teaching profession telling us that the checks and balances in the current legislation need to be withdrawn to allow them the freedom to deal with the situations that they are being faced with. I am hearing it from some head teachers, though not all, but I am certainly not hearing it from teachers themselves. As I said at Second Reading, there is this disparity of opinion within the profession itself, which makes it very difficult for us as legislators and non-teachers—most of us are non-teachers—to legislate on what is right. Perhaps my noble friend can give us some evidence of the need to remove these checks and balances and a clear description of the sort of crises that we are talking about. Are we talking about a child with a grenade in his pocket and his finger on the pin? That I would describe as a crisis—but I have never heard of it occurring. But a child with a knife or a gun in his pocket and not with his hand on it and not wielding it is a situation that would allow you to send for somebody else. If a child has it in his hand, it is on view and you do not need to search for it. You have a common law right to remove it. But if you have to search for it, you have time.