Education Bill

Lord Lucas Excerpts

Thursday 30th June 2011 Grand Committee

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, before I respond to the points raised in today’s debate, I should like to pick up briefly on the issue that we were discussing when we ended our session on Tuesday, including the points raised by my noble friend Lady Walmsley and other noble Lords about training in relation to searches. In the intervening day and a half, I have reflected on some of those points and I agree that some additional advice to schools would be useful. Therefore, I am happy to commit to recommending to head teachers in guidance that, when they designate a member of staff to undertake searches, they should actively consider whether that member of staff requires any additional training to enable them to carry out their responsibilities. This revised advice will be published in July before the start of the summer holidays.

So far as concerns today’s amendments to and discussion on Clause 2, the main purpose of the clause is to try to give schools as much freedom as possible to respond to their own circumstances and challenges. We know that under the existing legislation head teachers and authorised members of school staff can search for knives and weapons, alcohol, illegal drugs and stolen property. The current situation, as set out by my noble friend Lady Walmsley is that the person conducting the search must be the same sex as the pupil being searched and the search must be witnessed by a member of staff. Where practical, the witness should also be the same sex as the pupil. That is where we are now.

With regard to the provisions in Clause 2, we propose to extend these powers to allow schools to search for any article that they suspect has been or could be used to commit an offence, cause injury or damage property. It will also allow them to search for items banned by the school rules where they have been identified in the rules as an item which may be searched for.

In addition to adding to the range of items which may be searched for, the provisions will make changes to how searches can be conducted, as my noble friend said. They will allow searches to be carried out by a member of staff who is of the opposite sex to the pupil being searched and also searches without a witness. I emphasise that these changes are subject to what we believe to be strict safeguards. Searches can take place only where the searcher reasonably believes that there is a risk that serious harm will be caused to a person if they do not conduct the search immediately. Therefore, these powers could not be used to search for innocuous items banned under the school rules; there must be a risk of serious and imminent harm.

Amendments 25, 13 and 14 relate to searches being conducted under the school rules provisions. Perhaps I may briefly set out our intention behind this provision and the safeguards here that I think will help to guard against it being used inappropriately.

Our intentions in including a specific power which enables teachers to search for, and confiscate, any item identified in the school rules are to enable teachers to deal effectively with items which, although not harmful, can still cause problems in the school.

The current powers to search pupils without consent are already subject to a number of safeguards. Searches can be carried out only by the head teacher or someone authorised by them to search; they can take place on school premises or off the school premises only when the member of staff has lawful control or charge of the pupils; and they can be conducted only if the staff member has a reasonable suspicion that the pupil is in possession of a prohibited item. The pupil cannot be required to remove any clothing, other than outer clothing.

The school rules provisions introduced by this Bill will be subject to additional safeguards. First, an item can be searched for only if it is identified in the school rules as an item that can be searched for; and secondly, the school rules must be determined and publicised by the head teacher in accordance with Section 89 of the Education and Inspections Act 2006 or, in the case of academies, in accordance with regulations that mirror Section 89. That point was raised by the noble Baroness, Lady Jones of Whitchurch. This means that the head teacher must publicise the school behaviour policy, in writing, to staff, parents and pupils at least once a year. Furthermore, the use of force is explicitly excluded from this provision. These specific requirements will help to ensure that teachers, pupils and parents will know which items are subject to searches. The power is, in the Government’s view and in that of the Joint Committee on Human Rights, compatible with convention rights.

I turn to the test of reasonableness and the points raised by my noble friends Lady Walmsley and Lord Elton. I understand the thinking behind the amendment moved by my noble friend Lady Walmsley; she is obviously concerned that schools could include frivolous or unreasonable items in the list of items that can be searched for. While I do not believe, and I do not think that she would believe that in practice governing bodies and heads would be likely to behave in a frivolous way, we think that there are existing safeguards in place which govern how schools set their school rules. That relates to the question posed by my noble friend Lord Elton. These are set out in Sections 88 and 89 of the Education and Inspections Act 2006. Section 88 requires that the governing body of a school must make a written statement of general principles from which the head teacher will draw up the school’s behaviour policy, which includes the school rules. The governing body is required under Section 88 to consult parents and pupils as part of this process. I hope that in some way that will reassure my noble friend. The governing body is also required, when making the written statement of general principles, to have regard to guidance issued by the Secretary of State. There is also a legal requirement on head teachers to have regard to this statement in determining the school rules and to bring the school’s behaviour policy to the attention of staff, pupils and parents at least once a year.

The Government intend to use that guidance, among other things, to explain the nature of the obligations of necessity and legitimate aim under Article 8.2 of the European Convention on Human Rights. As with public authorities generally, the head teacher in drawing up the school rules would have to act reasonably. So I hope overall that my noble friend may accept that there are safeguards in place and that with those safeguards we should feel more reassured that we can trust schools to judge which items they need to search for in the context of their particular school.

I turn to the content of electronic devices and the examination and deletion of what might be on them. Clause 2 would permit the member of staff who seizes an electronic device to examine any data or files on the device, if they think there is good reason to do so. Following such an examination, the person may erase any data or files from the device if they think there is good reason to do so. I think that this point was accepted earlier in the week. There is agreement that the misuse of mobile phones and other electronic devices is a growing problem in our schools. According to Bullying UK, around one in seven young people have been threatened or harassed by mobile phone.

A study by the Association of Teachers and Lecturers published last year in March, suggested that one in seven teachers had been the victim of cyber-bullying by pupils and parents. I was struck that the Association of School and College Leaders welcomed this provision in its evidence to the public evidence session for this Bill in the other place as a way of schools dealing with cyber-bullying without involving the police, which is an important point. We do not want to get to the point where schools have to call the police to deal with matters when they could deal with them with some common sense and in a safe and orderly environment within the school.

I understand the concerns of my noble friend Lady Walmsley that the provisions in the Bill might give members of staff carte blanche to examine or delete the content of a pupil’s mobile phone. But we believe that by requiring the member of staff to have a good reason before doing so, and to have regard to guidance, the clause protects pupils from random searches of their property and provides a robust test which must be passed before a pupil’s personal information on his or her mobile phone can be deleted.

I did, however, listen to what my noble friend said and obviously like her read the comments from the JCHR. In order to address those points, I think we should make more explicit in our guidance that any examination or erasure of data or files must be justified. By this I mean that the guidance should make it clear that the staff member must reasonably suspect that the data or file on the device in question has been, or could be, used to cause harm, to disrupt teaching or break the school rules in some way. I can also commit to the guidance providing advice on the circumstances in which data can be erased and when that can be handed to the police. I hope that that provides my noble friend with some reassurance.

My noble friend also raised the point about the need to respect the private life of the pupil and the pupil’s family, and on the circumstances in which it is appropriate to involve the parents of the pupil. I understand her concern that pupils are protected from any unnecessary intrusion into their private lives. The Secretary of State’s guidance will make it clear that any examination or erasure of data or files must be justified. It will also explain to schools the nature of their obligations under the ECHR and emphasise the importance of respecting a pupil’s personal information and right to privacy.

As my noble friend Lady Walmsley suggested, I would be happy to share with her and other Members of the Committee who would be interested a draft of the Secretary of State’s guidance in advance of Report, so that she can be assured of its helpfulness and we can benefit from their expertise.

I hope that that reassures noble Lords that checks are in place to ensure that these powers could not be used inappropriately. I have committed to include additional safeguards in guidance and to share that guidance as the Bill progresses through this House. On the basis of those reassurances, I hope that my noble friend Lady Walmsley will feel able to withdraw her amendment.

[Lord Lucas]

My Lords, I would be very grateful if my noble friend would include me in that correspondence. I do not yet understand why, under any circumstances, a teacher should be able to delete something from a mobile phone. Surely, the point of finding something is that it then becomes evidence that can be used. In fact, it may be important to show it to the child's parents so that the parents become aware of what is going on. I do not understand the need to delete.

I am also concerned that while one might want and need under some circumstances to explore what is happening on a child's mobile phone, any teacher doing so will discover a lot of stuff that is personal and irrelevant. There is a problem over how that is dealt with. Perhaps it should be done by somebody not involved in teaching the child who can therefore keep separate any knowledge gained from looking at the mobile phone. I agree that there has to be this power in the Bill, but it has to be carefully used.

[Lord Elton]

We need to consider not only the privacy of the child, but the privacy of the person at the other end of the call who may be a parent. The exposure of the inside workings of a family could be quite damaging to the family if it were discovered or discussed. You cannot have a Chinese wall inside a telephone so far as I know, so I agree with my noble friend and I should like to be included on the round-robin list.

--- Later in debate ---

[Lord Storey]

I understand noble Lords’ concerns about crises, but I want to paint a different picture. In most situations, there will be teaching assistants in the classroom and learning mentors—a whole plethora of support staff who can support a particular situation. If there is a crisis, the best way to deal with it is not to provoke the situation further but to calm everything down. My concern is that if a teacher carries out this act by themselves and no one else is present, it could put them at risk. I can see all sorts of legal actions being taken whereby pupils, particularly at secondary school level, make allegations about what the teacher did to them. The police and law courts might become involved and it might become an absolute nightmare for schools and schooling, so I understand the concern about the crisis that might occur, but I am equally concerned about the well-being of the individual teacher and pupil. To put that teacher in that situation is potentially quite dangerous.

[Lord Lucas]

My Lords, when I think of my own childhood, members of the opposite sex were not the ones who caused the problems. Certainly these days when the staff of many schools are entirely female, you have to allow women to search men, and therefore men to search women, if those are the circumstances in which people find themselves. It must always be advisable to have a same-sex search, and it must almost always be advisable to have a witness, but imagine a situation in which a teacher is alone with a group of pupils and believes that one of the pupils has on them something that they could easily dispose of if they had the chance, whether it was drugs or a weapon. If they were out in the country, something could be dropped easily before they came back.

Searching consists of having the power to search, not actually saying, “Palmer, turn out your pockets”. The pupil would know that the member of staff had the power to search if they did not comply, and would therefore do as requested. This is a necessary part of the structure, but I am sure that no head teacher is going to advise any of their teachers to search when they do not have a witness, except in circumstances when nothing else is possible. I think that we can trust teachers and head teachers to use the clauses as they are in the Bill wisely.

[Baroness Howells of St Davids]

My Lords, having spent practically my entire life in this country fighting against stop and search, and marching on the streets about it, I can tell you the effect that being stopped and searched has on any human being. Why try to impose this on a child? Teachers have adequate powers with which to take the child away or do all sorts of things, but one should not take away the dignity of the child. In any number of cases when the police could not find anything, they made something up and criminalised the child. Some policemen have been known to say, “I am not changing my mind”. At that time, people in uniform were respected and believed. We had to confront those cases. I urge noble Lords to think very carefully about providing that power in the classroom. Children are there to be nurtured, loved and taught what is right and wrong.

It is a difficult situation because we have taken away from parents powers to discipline their children. I was told that I was a Victorian when I said, “My child does not do this or will not be allowed to do the other”. That was the attitude of most Caribbean parents. Children were children. We are turning them into fodder for the criminal courts. I ask the Minister to look very hard at this measure and take it away if he can. I have seen no empirical data that suggests that searching a child in the classroom will in some way prevent damage to other children—although it may prevent criminal damage to the building. I ask you to think about the child.

--- Later in debate ---

[Baroness Howells of St Davids]

I hope that noble Lords will forgive me as I, too, forgot something. I forgot to say that the Minister sent me a three-page letter the last time I spoke in the debate. I thank him very much for that and I am sharing it with my colleagues.

[Lord Lucas]

My Lords, perhaps I may ask my noble friend a couple of questions. First, I should be very interested in being included if he is telling people about the trials. The important thing is that they focus on the distillation—on the kids at the end who do not respond at the beginning to whatever is done. They are the ones who are abandoned at the end of the system. They are allotted four hours’ tuition at home but that does not happen and people forget about them. I very much hope that, as is the case with prisons, organisations are given money on the basis of the results that they achieve. We may try that at the back end of some of the trials so that innovative ideas are encouraged in rescuing these children who have proved difficult to educate.

Secondly, am I right in understanding that, when a school is concerned that a pupil may have special educational needs which may be causing problems, it has the absolute right to require and obtain the assessment when it is needed, rather than, as in the current system, waiting for the LEA to decide that it is prepared to do it?

[The Earl of Listowel]

My Lords, I thank the Minister for his reply to my amendment. I am pleased to hear that he is thinking of amending guidance in this way and I thank him.