Clause 229

Apprenticeships, Skills, Children and Learning Bill – in a Public Bill Committee at 3:15 am on 26th March 2009.

Alert me about debates like this

Power of members of staff to search pupils for prohibited items: England

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

I beg to move amendment 209, in clause 229, page 130, line 16, at end insert—

‘(aa) has reasonable grounds for suspecting that a pupil at the school may have an item that, in the judgement of a member of staff, may present harm to other pupils, staff or teachers;’.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss the following: amendment 337, in clause 229, page 130, line 19, at end insert—

‘(2A) In determining whether there are reasonable grounds under subsection (1)(a), the member of staff may have access to any CCTV footage that the school may have.’.

Amendment 353, in clause 229, page 130, line 26, leave out paragraph (c) and insert—

‘(c) any other item which, if it were to remain with the pupil or in his possession, may constitute a risk of imminent harm to the pupil himself or to any other person;’.

Amendment 14, in clause 229, page 130, line 31, at end insert—

‘(f) any other article which the member of staff considers may cause potential or imminent harm to the pupil or to others.’.

Amendment 90, in clause 229, page 130, line 31, at end insert—

‘(f) any other item prohibited by the published rules of the school.’.

Amendment 95, in clause 231, page 133, line 41, at end insert—

‘(f) any other item prohibited by the published rules of the college.’.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

We are now debating a very important part of the Bill, which concerns behaviour in schools. This is one of the problems that parents and teachers raised with us many times. Poor behaviour in our schools is one of the key reasons why teachers leave the teaching profession. It is also a key reason why many people who might be tempted to enter the teaching profession refuse to do so. Those people know that in too many of our schools persistent low-level disruption is the order of the day. We therefore need the provisions set out in clause 229 to give teachers more powers, for example, to search pupils for prohibited items.

The clause is very restrictive on the items for which teachers are allowed to search. For example, in proposed new section 550ZA of the Education Act 1996, teachers are given powers to search for knives in subsection (3)(a), offensive weapons in subsection (3)(b), alcohol in subsection (3)(c), controlled drugs in subsection (3)(d) and a stolen article in subsection (3)(e). That is a very prescriptive and exhaustive list. What about other items? The hon. Member for Yeovil has pointed out before that violent pornography does not seem to be listed. There may be other items that the school has banned in its school rules and which teachers should have the power to search for. Again that is not provided for in this clause.

Amendment 209 says that if the teacher has reasonable grounds for suspecting that a pupil at the school may have an item that in the judgment of a member of staff may present harm to other pupils, staff or teachers, that will be regarded as grounds for the teacher to conduct a search. Amendment 337 says that in determining whether there are reasonable grounds under subsection (1)(a), the member of staff may have access to any CCTV footage that the school may have. That might seem an odd amendment but there was a case reported in The Daily Telegraph recently where a teacher wanted to see CCTV footage of a classroom where poor behaviour was recorded, but was refused access to it because of the Human Rights Act. We have to make it clear that teachers have the right to examine such footage.

Amendment 353 says that any other item can also be searched for if, were it to remain with a pupil or in his possession, it constitutes a risk of imminent harm to the pupil or to other people. This issue was brought up during the evidence sessions of the Committee by the representative from the teaching unions. It is a very real concern that that power to search seems to be missing from this important clause giving. Amendment 95 adds a sixth item to the five items that can be searched for under subsection (3), namely any item that is prohibited by the rules of the school. That is the most important amendment, because in some ways it is not the item that is important but the fact that their child is deliberately disobeying a school rule. Being able to enforce school rules is probably even more important than confiscating the items listed in subsection 3(e), because it is about the credibility of the head teacher and the ability of teachers to maintain discipline in the school. Unless they can do that, violence will break out in the school and poor behaviour will proliferate not just within the school grounds, but out in the community.

Teachers have to be given real powers to tackle poor behaviour, because unless we tackle poor behaviour in our schools, we will not see a rise in the standard of education for schools, pupils or the country as a whole. Ofsted reports that 43 per cent. of schools in this country are not good enough. One of the key factors that renders them not good enough is poor behaviour. Teachers say that they simply do not have the power to instil discipline and good behaviour in our schools. One reason why they do not have that power is a lack of credibility. We on the Conservative Benches also believe strongly that head teachers should have the power to exclude pupils without such decisions being second-guessed by an independent appeals panel.

I would be grateful if the Minister were to explain why the list of items that can be searched for is so restrictive. Why is it confined to knives, offensive weapons, alcohol, controlled drugs and stolen articles, and why does it not apply to, for example, mobile phones, computer games or pornography, which also should not be on the person of a pupil at a school? During the evidence sessions with the Minister, it appeared that one reason might be the Human Rights Act 1998 or other legislation that protects the rights of a child in respect of possession of such items. But if those items are banned by the school rules, it should be perfectly within the legal right of schools to confiscate and search for them, if they were included in the provision, without contravening the Human Rights Act. Perhaps the fact that there is no home-school contract signed by parents, students and the school before the children enter the school is a reason why such action would contravene other Acts of Parliament, if items beyond those listed here were to be the subject of a search of a pupil. If that is so, the answer—again, this is Conservative policy—is for a home-school contract to be a condition of admission to a school.

The Minister has on many occasions expressed opposition to that policy, on the grounds that, if a pupil has a particularly poor parent who refuses to sign such an agreement, for whatever reason, that pupil should not suffer as a consequence, but that would then be an issue for social services and other departments to look into. If such clear evidence of poor parenting were presented, it would be an early warning sign to the social services department at the local authority that there was a problem. Otherwise there is no reason why a parent would not sign an agreement that simply says that the child, on entering the school, will abide by the school rules. If the school rules say that certain items are prohibited in the school, I see no reason why those items cannot be searched for, within the provisions in the clause, by teachers, head teachers or staff so authorised by the head teacher.

With those few words, I look forward to hearing the Minister’s response to this first group of amendments.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

This is an important clause, as the hon. Gentleman has explained. We think the amendments are valuable in seeking to strike a sensible balance between the powers to search that a school should have and the legitimate considerations about the confidentiality of pupils’ items. In the clause, the Government give teachers additional powers to search not only for weapons but for illegal drugs, alcohol and stolen property.

I understand that the Minister is trying to be helpful and to ensure that instead of the existing restriction to weapons, specific provision is made for drugs, alcohol and stolen property. However, there are some problems, one of which is that as soon as Ministers put a specific list such as this on the face of the Bill, head teachers, teachers, governing bodies and local government will understandably conclude that it is not reasonable for staff to search for items not included in the list.

We know from our evidence sessions that a number of the teaching unions are concerned about the effects of clause 229 and want it either deleted or amended to take proper account of their considerations. They understand that it is sometimes necessary to search in circumstances where there may not only be a weapon. I suspect that it is already the case—the Minister will correct me, if I am wrong—that when they think it proper, head teachers routinely search for illegal drugs, alcohol and even stolen property. However, by proscribing those particular items, the Government are opening themselves up to the accusation that they are leaving out a lot of items of great concern for which head teachers, teachers and others, including governing bodies, might legitimately expect that powers to search exist.

An interesting exchange that I cannot cite, as I do not have the papers to hand, took place involving one of the Conservative Committee members during our evidence session. He challenged the notion that children should automatically be presumed to have rights of protection in relation to most or all of their property and the ability to search it. He rightly pointed out that head teachers, teachers and governing bodies are, to a large extent, in loco parentis when young people are in school and that their responsibilities and powers ought therefore to mirror in many ways the freedoms that parents have in the home environment, particularly with regard to items that could endanger either the child concerned or other children in the school.

We had some interesting exchanges about that matter in Committee on 10 March, during an evidence session. I questioned the Under-Secretary of State for Children, Schools and Families, the hon. Member for Portsmouth, North about whether she intended under clause 229 to exclude powers to search for hard pornography, which was mentioned earlier by the hon. Member for Bognor Regis and Littlehampton. She was commendably direct in saying—I assume that she will confirm it today—that she has no intention of allowing it to be possible for head teachers, teaching staff and governing bodies to search within a school, even for hard pornography and, presumably, even if it is suggested that a pupil not only possesses hard pornography but seeks to sell or market it in some other way to other pupils. That leads us to the inescapable, but somewhat bizarre, conclusion that a head teacher or a teacher wishing to search pupils’ possessions or a locker, for an item such as hard pornography would find that they were unable to do so. However, presumably under the Bill, if a student were suspected of having alcopops or cider in their locker, there would be powers for the head teacher to search for that item. Most people outside this place—press comment has already been made about the issue—would be absolutely astonished that the Government intend such action under clause 229.

By putting such powers in the Bill in respect of items that it will be permissible to search for, head teachers will conclude that, rather than expanding the range of items that can be searched for, which seems to be the intention of the Minister, it will be made more difficult for them to exercise their judgment in determining which items should be searched for when they pose a risk to other students in the school and potentially individuals outside the school. It will create an extra element of bureaucracy for teachers and head teachers when doing their job.

The much respected John Dunford, the leader of the Association of School and College Leaders, has been critical of many aspects of the Bill and its degree of prescription. He said that additional burdens will make it difficult for schools to discharge their responsibilities and that it will make it particularly difficult for school leaders, who are a critical resource. We have already dealt with the complaints that Mr. Dunford is seriously worried about. Head teachers really do not need additional burdens of bureaucracy or obligations. They fear that the provisions will not only make schools a more dangerous place for students, but will make the job of being a head teacher or even a teacher much more challenging.

I asked the Under-Secretary of State for Children, Schools and Families, the hon. Member for Portsmouth, North, about her response to the issue of hard pornography and whether she would be willing for head teachers and teachers not to have the power to search for it. She replied:

“It is a choice between not making a prescriptive list covering absolutely everything that you would not want schoolchildren to have and a balanced power. We believe that the additional powers covering drugs, alcohol and stolen goods are appropriate.”

I understand that a balance might be struck between the need to protect to some extent the rights and freedoms of students and pupils, because I am not sure that any of us wants to give a completely open-ended power to schools to carry out a general trawl of all lockers on a regular basis. It is sensible to have some regulations and guidance within which head teachers and teachers have to operate. Surely the risk from the Government’s strategy is that, by specifying more clearly than is currently the case what can be searched for and not including some important items, they will make it difficult for head teachers to do their jobs.

I posed that point to the Under-Secretary after she said that she is relaxed about head teachers not being allowed to search for items such as hard pornography. She replied:

“We have data suggesting that drugs, alcohol and stolen goods are in schools, but we do not at this stage have evidence that there is a significant problem with pornography being taken into schools. We can extend powers further if a justifiable need occurs, but at this stage we do not believe that that is required.”——[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 164, Q383 and Q384.]

That raises several concerns, the first of which is what the data show at present and whether they are reliable. To my knowledge, the Committee does not have access to the information to which the Minister has referred about the extent to which drugs, alcohol and stolen goods are a problem in schools, and the extent to which they are searched for and seized. If there is such information and it compares those items with hard pornography, can we see it, because it would be useful in making our assessment?

Photo of Mary Creagh Mary Creagh Labour, Wakefield 3:30 am, 26th March 2009

I have been listening with great interest to the hon. Gentleman’s peroration on hardcore pornography. Will he clarify his party’s position on the possession of such pornography, with particular reference to 16 to 18-year-olds who might be in a school’s sixth form? I remember a Liberal Democrat conference a couple of years ago passing a motion that it was party policy that hardcore pornography should be available at 16; is that no longer the case?

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I am afraid that the hon. Lady is out of date and has not been following my party’s proceedings closely. She is clearly concerned about hardcore pornography, so I am delighted that she is taking part in this important debate, but is she actually happy to support the Government’s position?

Photo of Mary Creagh Mary Creagh Labour, Wakefield

I am asking about the hon. Gentleman’s position.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Well, I have explained my position. It is very clear—[Interruption.]

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Thank you, Mr. Chope. I would be delighted if the hon. Lady were to make a speech on the issue later, and I hope that she will indicate whether she supports the rather extraordinary limitations that the Bill places on the power to search. The provisions are not sensible and will amaze most people outside Parliament and strike them as completely dotty, particularly as there are powers to search for items that are far less dangerous. I think that most head teachers agree with the majority of teaching unions that the provisions are not sensible.

During the evidence session on 10 March, the Minister said:

“We can extend powers further if a justifiable need occurs, but at this stage we do not believe that that is required.”——[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 164, Q384.]

Is it really sensible to go about things in that way? The Minister suggests that there is currently no evidence that hardcore pornography is a problem, but we will discover whether that is the case when she responds and tells us what the statistics show in that regard, as well as whether they are reliable in relation to items such as drugs, alcohol and stolen goods, for which there are no powers to search at present.

Is it sensible not to include powers to search for hard-core pornography, even if it is not currently considered to be a huge issue? Are we really suggesting that we come back to legislate in yet another Committee, take up the officials’ time and incur additional expenditure simply to insert a power into the Bill that any sensible person would believe that a head teacher should already have? It is stunning and amazing that the Government do not believe that such a power is needed.

There are also interesting questions about other items that are not covered by the Bill. The Bill lists drugs, alcohol and stolen goods, and mentions the existing definition of weapons. Will the Minister let us know how the existing legislation currently defines weapons? That is directly relevant to our amendments on the  issue, because the provisions prescribe an inflexible list of items that will inevitably exclude others, on which head teachers and teachers should be allowed to make a judgment. There is a danger that we will exclude some items that are not currently considered to be weapons but that may be used as such in the future. That would not be sensible.

Youngsters often have crazes; there was one a couple of years ago, for example, that, rather than involving a hidden item, involved an activity that was inspired by a media advert. The situation became quite dangerous, and the practice was banned in many schools. There will be items that fall outside the Bill’s list that sensible head teachers, governing bodies and staff will not want to be circulated in their schools. It would therefore surely be appropriate for the Bill’s powers to be framed in such a way that we do not have to keep adding new items. We should not treat head teachers, teachers and governors like children; they are adults and responsible people who should be allowed to make judgments.

During the evidence session, the Minister made an interesting comment about why the Government had reached their conclusion:

“We are following the recommendations from Sir Alan Steer’s report, and we believe that additional powers to search drugs, alcohol and stolen goods are sufficient...That does not rule out searching for other items in the future.”——[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 164, Q384.]

Later in the same evidence session, we heard further evidence on the issue under cross-questioning by my hon. Friend the Member for Mid-Dorset and North Poole. She is insightful and well informed on the issue, and she probed Ministers about Sir Alan Steer’s report. Those discussions made it clear that independent bodies have recommended that there should be a more general power to search. If I have got that wrong—I do not want to waste the Committee’s time—I hope the Minister will intervene on me immediately with enthusiasm to prevent me from making any errors.

If it was true that Sir Alan Steer or others advising the Government suggested that there should be a general power to search, it would be odd that the Government had come forward with the specific proposals in the Bill, which create the concerns that lead to the amendments in the group. We need some further clarification on that, because when I further asked the Minister for Schools and Learners about that issue on 10 March in the witness sessions for Ministers, there seemed to be a great deal of uncertainty. I said:

“You will be aware that a couple of amendments have been tabled to clause 229 that do not give a general power to search, but that would widen the power to cover items, for example, that threatened potential or imminent harm to pupils; another Tory amendment refers to items banned by the school. Presumably you have not taken any legal advice on whether that would be an acceptable, wider power that would not have the same implications as a general power. Perhaps you could answer that last question before the two opening questions.”

Interestingly, the Minister replied:

“Obviously, to some extent those are things that we can discuss when we get to the debates on those clauses.”——[Official Report, Apprenticeships, Skills, Children and Learning Public Bill Committee, 10 March 2009; c. 186, Q457.]

In other words, the Government did not have an answer.

I expect a clear explanation from the Minister today, particularly because as it is relevant not only to this group of amendments, but to all those that we will discuss under the clause. It will be useful to have a clear explanation of why the Government have chosen to go down the course of having the specific power that excludes some important items, rather than a general power. Is it, for example, that the Government have been told that were there to be a general power to search, it would effectively be illegal because it would be in breach of children’s rights or human rights? The evidence given to the Committee by the Ministers was not only unclear, but seemingly contradictory to the Steer report in many respects, and seemingly inaccurate—although I believe that the Parliamentary Under-Secretary of State for Children, Schools and Families may have corrected herself later. Unfortunately, I tore out a page from the Official Report for the Committee evidence session to use in previous speech, and I do not have that quote to hand. However, I know that the Minister will correct me enthusiastically if I am getting this wrong.

The crucial issues that the amendments address are: why have the Government chosen not to go for a general power of search, and if they decided not to go for it because they believed that it would be open to legal challenge, have they made a mistake by not going for a more general power such as that contained in amendment 14, and in one of the Conservative amendments that we will come on to in a moment?

Jim Knightclaimed to move the closure (Standing Order No. 36), but the Chairman withheld his assent and declined to put that Question.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families) 3:45 am, 26th March 2009

I respect the right hon. Gentleman enormously, both as a Minister and as an MP in my region, but I am sure that he would not want others to read the proceedings of the Committee only to discover that, for party or other reasons, he had cut off a debate that was genuinely important. Frankly, even without the present background, I would want to explore the clause in detail. The number of amendments that have been tabled show that this is not an attempt at a long-winded intervention. We are debating a serious matter.

In deciding whether amendment 209 and the others in this group are a sensible solution to the problems, it is crucial to know whether the Government have considered the possibility of having some sort of mid-way power that sits between a general power to search—that might be too wide, although it seems that that is what Sir Alan Steer recommended—and a power to search involving proscription of the type suggested by Ministers.

Some of the amendments in this group could be immensely useful to the Government and might offer a way forward—a sensible compromise. I wish to comment on not only amendment 14, but some of the amendments tabled by the hon. Member for Bognor Regis and Littlehampton, to which he has already spoken, and which are important and useful.

Amendment 209 is a proposal from the Conservative party to add a refinement to the powers to be granted under clause 229. It allows for a power to search when there are reasonable grounds for suspecting that

“a pupil at the school may have an item that, in the judgement of a member of staff, may present harm to other pupils, staff or teachers.”

That is precisely the sort of sensible compromise amendment that might be welcomed by head teachers.

Even though we are at a late hour—or an early hour, depending on how one looks at it—and although the Minister may be tempted to give short shrift to anything at the moment, I hope that we will hear a positive response that not only sets out the reasons why the Government have taken this course, but explains why a provision of this sort might not be more sensible than the Government’s proposal. The amendment would ensure that the powers were not too widely defined, and thus would not fall foul of a reasonable person’s view of what powers a head teacher or teacher should have, but would be not so narrowly defined that sensible head teachers, governing bodies and teachers would find that they were operating under totally barmy restrictions that did not allow them to do their job properly. I would certainly be willing to support that amendment if the hon. Gentleman was minded to press it to a Division.

Amendment 337, which was also tabled by the hon. Member for Bognor Regis and Littlehampton, would insert an additional condition in clause 229(2), which deals with the powers that a member of staff may have to search a pupil or pupils. The hon. Gentleman seeks to add the following words:

“In determining whether there are reasonable grounds under subsection (1)(a), the member of staff may have access to any CCTV footage that the school may have.”

That is a sensible proposal. It is a sad fact that many schools have CCTV cameras. One would not have dreamed that it could happen, except in the John Cleese film—I have forgotten the title—that starts with a head teacher using a CCTV camera. Many schools now have CCTV cameras and it would be sensible, given the importance of these items and the risks involved, if the footage were allowed to be used. Clarification would be useful of whether the powers to search are to be based on evidence, rather than being general. I understand that the concern about the general power relates to not just the legal issues and human rights, but the power perhaps being abused by schools to trawl lockers on a general basis and without evidence. This useful amendment would indicate that there ought to be an evidential basis for head teachers and teachers taking action.

Amendment 353, which was also tabled by the hon. Member for Bognor Regis and Littlehampton, is also useful. In proposed new subsection 550ZA(3), which describes what are considered to be prohibited items, the amendment would replace paragraph (c) with

“any other item which, if it were to remain with the pupil or in his possession, may constitute a risk of imminent harm to the pupil himself or to any other person”.

That is similar to amendment 14, which stands in my name and that of my colleagues who have been wise enough to charge me with speaking to these provisions and therefore leave earlier. That amendment would add another prohibited item to the list of items in proposed new subsection (3):

“any other article which the member of staff considers may cause potential or imminent harm to the pupil or to others.”

It would address some of the concerns that I raised earlier. Unless my memory is flawed—as it may be at this time of the morning—the amendment was suggested to me by the National Union of Teachers. It gave very helpful evidence to the Committee based on its enormous experience in this area. It represents tens of thousands of teachers across the country, and even some head teachers, and many of those members would be faced  with the practical difficulties of implementing the narrow powers to search contained in this clause. I hope that the Government will accept something like either amendment 14 or amendment 353.

Amendment 90 takes another approach, which is also a sensible alternative. It was tabled by the hon. Member for Bognor Regis and Littlehampton, although I do not know whether it was recommended by some wise person in the world of education. [Interruption.] Yes it was—the hon. Gentleman himself. The amendment would define which items should be prohibited more narrowly through the use of a general power to search, but more widely and sensibly than in the Bill. It does so by stating very common-sensically—if that is a word—that the head teacher and staff should have the power to search for any other item that is prohibited by the published rules of the school. That amendment is extremely sensible, and it would be very odd if a head teacher or a teacher were not given such a power.

My view—we will hear from the Minister whether it is accurate—is that if we accepted either amendment 14 or amendment 353, or amendment 90—which is coupled with amendment 95 on the college sector—we would have a far more pragmatic and realistic power to search. With amendment 14 or amendment 353, the power would be constrained to items that might cause potential or imminent harm, which could include a far wider range of items than set out by the Government, but would not be a general power to search, and the other route that has been suggested, almost as an alternative to amendments 14 and 353, would simply base the power on the published rules of the school.

I see no reasons why parents would not be extremely happy to know that, were their child to bring in an item prohibited by that school or college, the head teacher or another member of staff would have the power to search for it. That seems extremely sensible, and in my view it could get the Government around the problem of trying to deal with the potential problems of a general power of search while ending up with a list of items that is frankly incomplete. As the Minister has been so constructive, thoughtful, patient and unhurried today, I hope that she will give the issue and the amendments the consideration they deserve.

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families 4:00 am, 26th March 2009

Amendments 209, 353 and 14 would broaden the scope of the clause to include items likely to cause harm, and amendment 353 would also remove the specific reference to alcohol. I understand why hon. Members want to widen the scope of the clause in such a way, but I do not believe that to be necessary. The current weapon-search powers, which the clause will re-enact, already enable teachers to search for any article made or adapted for causing injury, or intended by the person carrying it to be used to cause injury. That covers much of what is proposed by the amendments with regard to items causing harm to other pupils.

Both alcohol and illegal drugs were specified by Sir Alan Steer. He did recommend a general search power when responding to a question from the hon. Member for Yeovil, but he particularly highlighted alcohol, drugs and stolen property.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

The Minister has usefully corrected the evidence she gave the Committee on a page of the report that I do not have—in fairness, she might have corrected it later in our proceedings. Will she indicate why she has rejected the general power to search that Sir Alan Steer recommended?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I will get to that point if the hon. Gentleman is patient and does not jump up to intervene.

Both alcohol and illegal drugs were specified by Sir Alan Steer, following consultation with fellow practitioners, as items used by pupils to harm themselves. Both will be specified for the first time under the new search powers, together with stolen property, which Sir Alan also highlighted as an issue.

Items contrary to a school’s behaviour policy, as suggested by amendments 90 and 95, were also included in Sir Alan’s recommendation on the extension of the search powers, and we considered that when drafting the clause. I agree that we could have had a longer list or a more general power, as the amendments suggest, but there are clear reasons for not doing so. First, we want to ensure that any potential interference in a pupil’s rights under article 8 of the European convention on human rights is reasonable and proportionate. Secondly, alcohol, controlled drugs and stolen property are the items that schools are most likely to want to search for.

The hon. Gentleman asked me what data we had on that. In 2006-07, there were 400 permanent exclusions relating to drugs and alcohol and 210 permanent exclusions for theft. Of the fixed-period exclusions recorded, 8,180 were related to drugs and alcohol and 9,440 to theft. Bullying data from the longitudinal survey of young people in England tell us that 3 per cent. of 13 to 14-year-olds had been made to hand over money or possessions to bullies in the previous 12 months. According to the Home Office’s 2006 crime survey, 9 per cent. of 10 to 17-year-olds spoken to reported stealing something at school in the previous 12 months. In a survey of 1,500 teachers for the NUT published in 2008, 20 per cent. of respondents reported witnessing possession of drugs within their school in the preceding year, and over 20 per cent. reported witnessing the possession of an offensive weapon in the preceding year.

The hon. Gentleman mentioned pornography, but we simply do not have evidence that a power to search for pornography is needed. Schools can, of course, search young people with their consent, and if pornography is found, they have the power to confiscate it. His proposal would allow search without consent.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I apologise if I missed part of the Minister’s speech as I try to juggle these different amendments, but did she refer a moment ago to evidence on the number of occasions on which alcohol was searched for and found in schools in the past few years?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

The evidence I gave was of the number of drug and alcohol-related permanent and fixed-period exclusions, and the survey of teachers, which showed that 20 per cent. of respondents reported witnessing possession of drugs within their school. By limiting the scope of the clause to five specific items—knives and blades, offensive weapons, alcohol, illegal drugs  and stolen items—we are confident that any breach of a learner’s right to privacy is in each case justifiable and proportionate. These items are either potentially dangerous to other pupils or the cause of serious disruption to the school. Furthermore, schools and colleges are responsible for developing their own rules for learner behaviour, and including items contrary to the behaviour policy would leave learners open to personal interference in relation to any item that a school or college might introduce within its rules. It might be helpful if I tell the Committee what schools can and cannot do in respect of their behaviour policy. They can make clear in their rules and in communications to parents that certain items are unacceptable, they can punish pupils who are found in possession of such items and they have the power to discipline under the Education and Inspections Act 2006.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

How will schools find a child in possession of an item prohibited by the school rules if they are not permitted to search for them under the provisions of this clause?

Photo of Sarah McCarthy-Fry Sarah McCarthy-Fry Parliamentary Under-Secretary (Schools and Learners), Department for Children, Schools and Families

I am making the point that they have certain powers without the power to search without consent. They can instruct a pupil to turn out their pockets or bag. They can confiscate, retain or destroy items if they find them. School and college staff need to be clear about what they can and cannot search for, otherwise we risk causing confusion and uncertainty. We will, of course, ensure that our new guidance gives staff the clarity that they need to use the new powers appropriately and professionally.

I want to turn to amendment 337 because I wish to assure hon. Members that it would be permissible under the Data Protection Act for school staff to view CCTV footage to establish whether a pupil has brought a prohibited item into school, so there is no need to specify that in the Bill. For the avoidance of doubt we will make this clear in our revised guidance. I hope that the hon. Gentlemen will not press their amendments.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

I thank the Minister for giving a—not entirely—full response to the Committee, particularly in the light of the length of time for which she has had to lead for the Government on the Bill in this sitting and the wide range of issues she has had to deal with. She has been at all times extremely helpful to the Committee. However, I still have a couple of concerns about the Government’s position.

First, I am not clear—again I apologise if I missed a part of the hon. Lady’s exposition—why the Government have decided to go down this route. My recollection from the Committee hearing when we took evidence from the Minister—and I confess I do not have the relevant quote handy—was that there was some indication that there might be a legal concern about the general power to search, which was why I questioned the Minister for Schools and Learners about this. The hon. Lady did touch on the Government’s reasons for making the judgment, but she did not say whether this was primarily a legal judgment, and whether she felt the Government might be open to challenge if the power to search were too wide, or she was making her judgment because she  thinks that the rights, freedoms, protections and privacy of youngsters should be given as high a priority as possible and she thus wished to constrain the number of proscribed items to the priority ones. I would be grateful if she could clarify that, as it is obviously enormously significant. I would also be grateful if she could confirm that there is nothing in this particular group of Opposition amendments that would be illegal. I ask because it seems to me that the amendments are so obviously superior to the Government’s position that I cannot help but feel that the Minister must think that they might be perceived to be illegal and thus that they would not stand up to the scrutiny that exists in relation to human rights these days, which is admittedly quite extensive. If that is the case, we need to know that here and now.

I think that we are bound to return to this issue, either on Report or in another place. We know that our noble Friends at the other end of the corridor do a very thorough job of scrutinising Bills and that they also have a great deal of legal expertise. I think that they will want their debate to be informed by legal realities rather than the instincts of a Minister. They will want to know the fundamental objections to this different approach.

My second concern about the Minister’s position relates to the evidence that she is offering to the Committee. I am not aware that she cited any particular statistics in relation to pornography, be it hard or otherwise. I am not clear whether that was because there is a lack of data on the subject, or because the data that exist indicate that there have not been many occasions when these powers have been used. However, I wonder if part of the reason why she is not able to cite any evidence is that information on measures that she has discussed and referred to in relation to other proscribed items is more likely to be collected by schools and, potentially, local authorities. In other words, is it the case that although pornography—hard or soft—is a very serious matter, some head teachers might be seeking to deal with it in a way that is well short of the types of sanctions that might trigger a reporting process?

When the Minister cited evidence about the items that she selected for this particular measure, I think that she indicated that, in relation to drugs and alcohol, she was talking about permanent exclusions, although I might be wrong and she may have referred to temporary exclusions—perhaps she will clarify that point. However, she was certainly relying on exclusions as a proxy for the number of cases of drug and alcohol abuse. It may be the case that that proxy is reliable for capturing some sense of the scale of drug and alcohol problems, but not for capturing some sense of the scale of the problems relating to pornography. In fact, I might have misquoted the Minister, in which case she may want to correct me.

I think that the Minister also referred to evidence on school staff witnessing drug incidents, so she was relying on data reported by staff members. It may have been that the exclusions related to weapons. If the Minister could confirm that that was the case, that would be useful.

My point stands, however, because I am not quite sure that the evidential basis that the Government are using is reliable. Also, I am unsure that what we are not picking up from the statistics that the Minister cited is  the propensity for particular prohibited items—or, as it may be, non-prohibited items—to be identified by schools as serious.

I think that I was mildly convinced by the Minister’s comments about weapons. I was not quick enough to write down precisely what she said, but she appeared to indicate that the legislation relating to weapons is quite widely drawn. Although I was trying to think of a way of catching her out, it seemed to me that most of the items that sprang immediately into my mind might be covered by the definition of “weapons”. Having said that, given the risk of weaponry developing in unexpected ways, I would want to reflect on that definition before the later stages of the Bill.

However, I am afraid that I still cannot accept the Minister’s judgment that schools and head teachers should not be empowered to search for soft or hard pornography. I repeat the point that in the media, in the Chamber and among our constituents, there will be amazement that the Government are prepared to pass legislation that prohibits a series of items, including alcopops and cider, but that leaves teachers and head teachers absolutely powerless to intervene when they think that hard pornography is being marketed or spread throughout a school by a student. That is a deeply irresponsible position for the Government to take, and it will cause great concern among head teachers and governing bodies throughout the country.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 4:15 am, 26th March 2009

I listened carefully to the hon. Member for Yeovil and to the Minister. The latter recited the definition of a weapon. I presume that I missed the citation, but I presume that she cited the Prevention of Crime Act 1953—the clause refers to its definition of an offensive weapon. If my interpretation is right, she gave quite a wide definition, as the hon. Gentleman said, to include anything that would essentially cause injury—the Minister used those words—but not necessarily cause harm.

I am concerned about that because more things than items that could fall within a definition of an offensive weapon can cause harm. Some things may well, from what I heard of the Minister’s definition—it sounded as though she said “things like poisons”—fall within a definition of an offensive weapon, although it is not entirely clear to me as a layman. Items other than pornography could be harmful to children in schools, such as violent video games. Extreme violent video or computer games could well have been banned by the school and they could clearly cause harm, especially to young children. Teachers should be able to search for such things if children are suspected of having them in their possession.

I was not convinced by the Minister’s argument—I suspect she was not convinced either—because she carefully used the phrase “cause injury” and deliberately missed out the word “harm”. I am therefore minded to press amendment 209 to a Division. To remind the Committee, it refers to a situation in which a teacher

“has reasonable grounds for suspecting that a pupil at the school may have an item that, in the judgement of a member of staff, may present harm to other pupils, staff or teachers”.

Before deciding definitively whether to press the amendment to a Division, I should like to talk about what the Minister said when she responded to the  debate on amendment 90. She indicated that any item prohibited by the published rules of a school should be the subject of a search if it is suspected that a child has them in their possession. It seemed that she ruled that out in her response to the later debate, despite the fact that it was recommended by Sir Alan Steer, because it might not be reasonable or proportionate to search for items such as mobile phones that had been banned under the school rules under article 8 of the European convention on human rights.

The Home Secretary referred to such situations when she said that some people over-interpreted the Human Rights Act 1998. She said that people erred on the side of caution—jobsworths and others prevented people from, say, holding events on the grounds that they might contravene the Act. The Minister is falling into that trap by saying that giving teachers the power to search for items that have been banned by the school rules might contravene the 1998 Act or the convention. I find that difficult to believe, so I should like look again at what she said.

Photo of David Laws David Laws Shadow Secretary of State (Children, Schools and Families)

Is the hon. Gentleman hopeful that the Minister will respond to some of the points that were raised, particularly about the legal questions attendant to the proposed amendments and the Government’s attitude? It would be enormously helpful to us if the Government put those on the record, not only so that we can make judgments today, but on Report and when the Bill goes to another place.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools)

The hon. Gentleman makes a valid point, but alas, I am not hopeful—and after seeing the Minister’s expression, I am even less hopeful. I would like to think about it further and, perhaps, come back to the subject of whether school rules can be enforced through search powers a little later. For the moment, I would like to press amendment 209, regarding items that might cause harm to pupils, staff or teachers, to a Division. Teachers should be able to search for such items if they suspect that they are in the possession of a pupil at the school.

Question put, That the amendment be made.

The Committee divided: Ayes 3, Noes 8.

Question accordingly negatived.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

We have now been sitting for over eight hours since we reassembled after the one-hour break for dinner and we have been sitting continuously for over three hours since the last refreshment break. I have been reflecting on the comments which were made following the short break which concluded at 3 am and was designed for discussion through the usual channels. Taking into account the number of amendments and clauses left to the Committee to consider; the time  available to complete consideration under the decisions of the House on the programme motion and of the Committee’s programming sub-committee; the imperative that the Chairman, members and staff involved in supporting the Committee’s work are entitled to reasonable rest and refreshment to enable them to operate effectively; and the lack of notice of this prolonged sitting, which has meant that my co-Chairman is absent, that the Hansard reporters and the Refreshment Department have been unable to bring in substitutes, that no staff were given notice of this, including the Clerks who have been valiantly supporting the Committee since 9 o’clock on Thursday and considering the powers that I have as Chairman to suspend the sitting, I judge that, given all the circumstances that I have outlined and other circumstances, we should suspend the sitting now and reassemble at 8.15 am. I point out to right hon. and hon. Members that the Refreshment Department reopens at 7.30 am for breakfast, which members may wish to take before embarking on what may be another long day’s deliberations.

Photo of Siôn Simon Siôn Simon Parliamentary Under-Secretary, Department for Innovation, Universities and Skills

On a point of order, Mr. Chope. I am grateful for that clarification. I could not help noting that you did not mention taking into account the desires expressed by Labour Front and Back Benchers to make progress with the Bill——progress that was not aided by Opposition Members taking more than an hour on the last group of amendments. Nor was it expedited by your decision not to allow the Question to be put some time into that hour. In the light of this very unusual suspension for a very long period of time, which effectively denies us the opportunity to sit through the night, and adjourning the sitting until the morning, can you clarify the precedents for the decision, which is not in line with the advice we received from the Clerk earlier in the evening?

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

The hon. Gentleman raises a point of order of which I can assure him I have taken account. I have also taken into account all the comments of hon. Members, the amount of time that is left for consideration of the items that have yet to be discussed on our agenda and the desire expressed by some Members to carry on sitting indefinitely. I have to take all those issues into account, including precedents and the fact that we are in a completely new situation without precedent, where it is possible——I do not know——that the Committee will not take advantage of the possibility of sitting on Tuesday so that proceedings will be concertinaed into one very long sitting.

The hon. Member for Birmingham, Erdington may wish to reflect on the fact that there was no need for people to be taken by surprise on this issue. When I speak to my co-Chairman about it, I expect that she will be as surprised as I am, and continue to be, that the fact that this was a possibility was not shared with the Chair. If it had been shared, then many of the problems that I addressed in my remarks, and the conclusions I have reached, could have been avoided. The hon. Gentleman said that we were not going to sit through the night. I am not going to get into semantics, but many people would think that a virtually continuous sitting from 8 pm after the one-hour break until 4.30 am is sitting into the night, although it may not be going right through the night. I will not get involved in issues relating to working time, because the Palace of Westminster is exempt from all that, but I must take into account the sort of factors that lie behind that type of legislation. I think we owe it, even if not to ourselves, to the staff to have some reasonable consideration. Lots of short breaks would not be sufficient if we face the prospect of another eight or 10 hours of deliberation.

Photo of Jim Knight Jim Knight Minister of State (Schools and Learners), Department for Children, Schools and Families, Minister of State (Department for Children, Schools and Families) (Schools and Learners)

On a point of order, Mr. Chope. I do not wish to delay things very much further. I understand what you are saying and I appreciate the work the Clerks have done. I would appreciate your advice as to whether the time of four hours is your judgment or the advice of the Clerk.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Ultimately, whether it is the Speaker, Deputy Speaker or member of the Chairmen’s Panel, the judgment is a judgment of that person——

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

Order. I am answering one point of order. The hon. Gentleman, who is a Minister, should know better than to interrupt the Chair when he is responding to another point of order. That is the sort of behaviour that should not be tolerated. I put it down to the fact that people are suffering from fatigue.

We are in an unprecedented situation and I am making my judgment. If people disagree with it, they are free to do so, but what they cannot do is challenge the ruling of the Chair. Without further ado, I am going to suspend the sitting until 8.15 am.

Sitting Suspended.