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Apprenticeships, Skills, Children and Learning Bill

– in a Public Bill Committee on 26th March 2009.

Alert me about debates like this

[Mr Christopher Chope in the Chair]

[Continuation from column 834]

On resuming—

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

I beg to move amendment 88, in clause 229, page 131, line 30, at end insert—

‘(6A) The requirement in subsection (6)(b) shall not apply in circumstances where—

(a) the school has no members of staff of the same sex as P, or

(b) the provisions of subsection (4)(b) apply and there are no members of staff of the same sex as P available.’.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss the following: amendment 89, in clause 229, page 131, line 30, at end insert—

‘(6A) The requirement in subsection (6)(c) shall not apply in circumstances where—

(a) the school has fewer than two members of staff of the same sex as P, or

(b) the provisions of subsection (4)(b) apply and there are fewer than two members of staff of the same sex as P available.’.

Amendment 91, in clause 229, page 131, leave out line 33.

Amendment 96, in clause 231, page 134, leave out line 45.

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

It is good to see you fresh and alert, Mr. Chope, on this Friday morning. I just spent half an hour asleep in the office, among the moths, and I now realise that MPs do not need a second home.

Amendment 88 relates to proposed new section 550ZB(6)(b) in the Education Act 1996, which requires that a person carrying out a search

“must be of the same sex as P”,

P being the pupil being searched. Subsection (4)(b) states that, if off premises, a search may be carried out only if the member of staff has

“lawful control or charge of P.”

The exemption we seek would be for either a small school where the teachers are of one sex, and that sex is different from that of the pupil being searched, or a school trip with no members of staff of the same sex as that of the pupil being searched.

The Association of School and College Leaders raised the following concern:

“We believe that detailed provision for conducting searches should not be on the face of the Bill... There may be occasions (particularly in small schools or on small school trips) when it is important to search but all the conditions cannot be fulfilled. There needs to be some flexibility if senior school leaders are not to be exposed to risk of legal action when doing their duty. Under the Bill a minimum of four staff (two of each gender) must accompany any school trip where there may be a possibility of  drugs, alcohol or weapons being carried or bought - clearly this is impracticable and would put an end to many school trips. Given that this is a reserve power for use in emergencies, we think there should be some allowance for emergency use when there is a risk of serious disorder or physical danger”.

This is a pragmatic amendment to an important clause giving powers to school staff to search pupils suspected of having on them a prohibited item.

Amendment 89 relates to subsection (6)(c), which states that someone

“may carry out the search only in the presence of another member of staff of the same sex as P.”

The amendment is similar to the previous amendment, but concerns situations in which there is only one member of staff of the same sex as the pupil being searched. The requirement is that there be more than one. Amendment 91 would leave out line 33 on page 131. That line just reads: “P; and”. It deals with a search of a pupil’s property in the presence of the pupil. Subsection (7) states:

“P’s possessions may not be searched under section 550ZA except in the presence of...P...and...another member of staff.”

That is also of concern to the Association of School and College Leaders, which stated:

“We are concerned, however, that the effect of these clauses is that no belongings may be searched except in the presence of the pupil concerned. There are occasions when a school may, for example, find it necessary to have a general locker or bag search while pupils are in class to find stolen or forbidden items without arousing the suspicion of the pupils concerned. To have every child present while this is done would be wholly impracticable. The term ‘possessions’ is defined as including any goods over which a pupil has or appears to have control. This is helpful in preventing the pupil from saying ‘it’s not mine, it’s my friend’s’, but we seek clarification that the term ‘possessions’ does not cover pupils’ lockers or desks. We believe that there should be a distinction between the power to search clothing with force and the search for possessions.”

It would be helpful if the Minister responded to that question about the definition of possessions in the Bill. Alternatively, if the Minister accepts amendment 91, which would delete line 33, that would remove the problem.

Finally, amendment 96 would essentially remove the same provision for college students, which requires a person of the same sex to be present while their belongings are searched. Again, there may be occasions on which the college authorities need to search bags or lockers to find items such as drugs without wishing to alert the student under suspicion to the search. It would be perfectly pragmatic to remove that prescription from the Bill. I look forward to the Minister’s response.

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

May I welcome you back to the Chair, Mr. Chope, and say good morning to Committee members and those listening to our proceedings in the Gallery? May I particularly thank the staff of the two Departments and the staff of the House who have remained with us? They have been extremely patient in spite of the fact that they have probably had to deal with unusual circumstances and have perhaps slept in places where they have not slept before. That is very much appreciated.

The amendments are important. I confess that I considered tabling something similar. These requirements seem onerous. There are concerns that schools are becoming inclined to shy away from school trips because of their real and perceived health and safety obligations. Some of those concerns may not be genuine, and schools may  have excessive concerns over the risk of legal action, but some concerns are genuine, and they relate to issues such as those specified in these provisions. They are highlighted particularly in the earlier amendments tabled by the hon. Member for Bognor Regis and Littlehampton.

Sad though it is, I understand that we live in an age when these powers must be exercised very carefully by school staff. Their activities are open to great scrutiny, and claims are sometimes made by pupils and others about inappropriate activity by staff. I appreciate the need for proper protections not only for pupils but for staff members who could be at risk of having their reputations impugned. That is what caused me to shy away from my natural inclination to try to amend these provisions to make them more reasonable. I am attracted to the hon. Gentleman’s earlier amendments because they focus on small schools or schools with a restricted number of teachers of one or both sexes. In that situation, there is a particular reason for providing greater flexibility than we might otherwise, and for ensuring that the reasonable actions of teaching staff are possible and that we do not inadvertently deter schools from taking their pupils on school trips, where such issues often arise.

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

The existing legislation on the powers to search for knives and other offensive weapons includes a number of important safeguards to ensure that power is not used inappropriately.

Before I go any further with my remarks, however, I must beg your indulgence, Mr. Chope. Hon. Members may have noticed that the hon. Member for Plymouth, Devonport was not with us last week. Her father was very seriously ill, and I regret to inform the Committee that he has since died. He was previously an hon. Member, and I am sure that the Committee will wish to pass on its condolences.

The safeguards include a requirement that the person conducting the search must be of the same sex as the learner, and that the search must be carried out in the presence of another staff member who is also the same sex as the learner. They also require that searches of the learner’s possessions are conducted in the presence of the learner and a second member of staff. Several of the safeguards were introduced during the passage of the Violent Crime Reduction Act 2006, in response to concerns about human rights issues, and I understand why hon. Members would wish to remove them in certain circumstances. However, they are important safeguards that are intended to protect the learner and the member of staff conducting the search.

One instance that the hon. Members for Yeovil and for Bognor Regis and Littlehampton both mentioned was school visits, but our guidance on those says that if a power to search is required, people should call the police. Most secondary schools and colleges, which are much more likely to use the power, will have a mix of staff, so it is likely that the issue of not having staff of the same gender as learners will apply only in primary schools, and we do not think that that justifies removing the safeguards from the entire school and college system.

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

The hon. Lady will have seen statistics that show the very small proportion of male teachers in primary schools. I do not have the data here, but it is  very likely that a significant number of even medium-sized primary schools will have no male members of staff, although they will, of course, have male children. What does the Minister envisage in those circumstances? Is she saying that the power will not apply to that significant number of primary schools?

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

The word that we need to use is “proportionate”, and we should also point out that the provision is a power, not a duty. If it is not appropriate for a school or college to undertake a search, it is not required to do so. The powers are much more likely to be used in secondary schools and colleges, and that is why, on balance, we should not remove the safeguards.

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

The Minister must be a little out of touch if she has not been reading about—or, given her position, heard first hand—that violence is increasing among very young children. There is, therefore, a strong likelihood that they will possess contraband, so I am surprised that she uses “proportionate” and “power, not a duty” in relation to the clause. There seems to be a hole in the clause, because she admits that the provision is not applicable to a significant number of primary schools, where the amount of poor behaviour, violence and, undoubtedly, children with banned and illegal products, is increasing.

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

The other point is that we are discussing a certain power without consent, but schools can, of course, require children to turn out their pockets. The safeguards are important, and we have come to the view that we need to keep them in the system.

It is worth noting that the requirement that the learner be present while his possessions are searched is to protect not only learners’ basic human rights, but the member of staff conducting the search against accusations of theft or of planting evidence. Failure to comply with that requirement might render any evidence unreliable. “Possessions” covers lockers, and schools can make it a condition of having a locker that pupils consent to a general search of lockers.

I appreciate hon. Members’ reservations about the approach, but, by enshrining those important safeguards in the Bill, we will ensure that the powers are used appropriately and protect the rights of staff and learners. I invite the hon. Gentleman to withdraw the amendment.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 8:30 am, 26th March 2009

That is not really a satisfactory response. Essentially, the Minister is saying that this provision has been put in the Bill to give teachers what she believes is an important power. However, it is only a power, not a duty, and should not be used where primary schools have no male members of staff or if there is a school trip where there are no male members of staff. In those circumstances—be it in the Peak district, the middle of the countryside and so on—staff in charge of pupils should call the police. That would no doubt be the Minister’s advice in a primary school where there were genuine grounds for suspecting that a male pupil had in his possession something that could potentially harm another child or teacher, such as an offensive weapon. In those circumstances she recommends that the primary school calls the police to deal with the five, seven or nine-year-old.

In our school system, we are seeing increasing numbers of examples of police being called out to deal with fights in the playground—a direction of travel that the public do not want. They do not want nine-year-olds arrested and taken to the police station for hitting another child. With that policy we are going down a pathway that potentially criminalises young children—an experience that could traumatise them.

I was never naughty as a child, so I would not know what happens, but I understand from others that even being sent to the head teacher or out of the classroom is a traumatic experience for a young child. Imagine what it would be like if a policeman suddenly appears and asks to see a six or seven-year-old child in a primary school. It seems bizarre. It is particularly frustrating, because the problem could easily be solved by the amendments, which do not put a coach and horses through the legislation but merely make a small exemption for circumstances where there are small primary schools or school trips with no male teachers. I am surprised that the hon. Lady does not accept the amendment and I am tempted to press it to a vote. On the other hand, we want to make progress, so this might be something that we can discuss again on Report.

Photo of Bill Wiggin Bill Wiggin Opposition Whip (Commons)

As a parent of young children, I cannot imagine how horrified I would be if, having signed the consent forms and allowed my child to go off to the Lake district or wherever, I found that the police had been summoned to such an event, even if the child in question was not concerned at all. That is absolutely wrong. It sends all the wrong signals and does not provide the sort of confidence that parents expect. Does my hon. Friend agree that such an issue should be discussed on the Floor of the House? It is a serious matter that other colleagues might wish to discuss.

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

I am grateful to my hon. Friend. He makes a good point from his perspective as a parent. We should return to this matter later in the proceedings of the Bill. With that in mind, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 356, in clause 229, page 131, line 35, after ‘section’, insert ‘and in section 550ZC’.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss the following: Amendment 354, in clause 229, page 132, line 2, after ‘550ZA’, insert

‘or, if he is not the person carrying out the search, a member of the security staff of the school,’.

Amendment 355, in clause 229, page 132, line 6, at beginning insert

‘in the case of a member of the security staff of the school,’.

Amendment 359, in clause 229, page 132, leave out lines 12 to 40 and insert—

‘(4) A person who, under subsection (1), seizes any item other than alcohol and its container, must deliver it to a police constable as soon as reasonably practicable.’.

Amendment 357, in clause 229, page 132, line 40, at end insert—

‘(10) In this section—

“alcohol” has the same meaning as in section 191 of the Licensing Act 2003;

“controlled drug” has the same meaning as it has by virtue of section 2 of the Misuse of Drugs Act 1971;

“stolen”, in relation to an article, has the same meaning as it has in section 24 of the Theft Act 1968.’.

Amendment 397, in clause 229, page 133, line 2, leave out paragraph (a).

Amendment 358, in clause 229, page 133, line 4, leave out paragraph (b).

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

The amendment was suggested by the National Union of Teachers, and Liberal Democrat colleagues have subscribed to it. It is a joint tour de force, and as such I am sure that it will find favour with the Minister,

Essentially, the NUT says that although it is appreciated that the provision is intended to confer a power, there are circumstances in which it may be found that there is a legal duty to exercise a power when it is necessary to do so in order to protect children from harm. The NUT acknowledges that there are situations in which teachers might need a power to search and would wish to have that power clearly defined so that they need not fear contravention of the Human Rights Act or prosecution for an offence against the person.

However, teachers are not law enforcement officers, and they have no reason to risk assault by insisting on searching a pupil who is capable of a violent reaction. They say that their power to search should be linked directly to their responsibility for the health, safety and welfare of pupils under their supervision and care. Teachers have serious worries about using powers to search or restrain pupils, and the law tends to be uncertain for them. Section 96(1) of the Education and Inspections Act 2006 uses the word “proportionate”, and the burden is on the teacher to prove that his or her action was proportionate and therefore lawful.

That is too much of a burden, and the consequence is that teachers often do not wish to use the powers. That is a great shame. The powers are useful in maintaining order in schools, but they can also be important in protecting the child in question as well as other children, teachers and staff in a school. The amendments would be useful in crystallising the legal position. It would be interesting to hear the Government’s response, and I am sure the NUT would be grateful to hear it.

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

I support the amendments, obviously, as we have also signed them. I commend the National Union of Teachers for its assiduous lobbying of both Opposition parties. You will be grateful to hear that I will not repeat the arguments, Mr. Chope, as I have the same briefing note as the hon. Member for Bognor Regis and Littlehampton and am therefore likely to make similar arguments. However, I would like to address one point on which the NUT raised concerns and suggested amendments. Neither he nor I tabled those amendments, but they relate to amendment 359, which he underplayed with typical modesty.

Amendment 359 deals with what an individual should do with confiscated items. We have not signed up to the amendment; it was tabled by the hon. Gentleman and his party colleagues alone. Essentially, it relates to page 132 of the Bill, and would omit a large chunk of the lines  between 12 and 40, inserting a subsection (4) placing a responsibility on an individual who seizes any item other than alcohol and its container to deliver the item to a police constable as soon as is practical. In other words, any items confiscated must be handed over to a police constable, unless they are alcohol.

That is not what the Bill says at the moment, which is why the hon. Gentleman is seeking to amend it. The Bill contains provisions that make it necessary to hand weapons over to a police officer, but in the case of controlled drugs, the individual who confiscates them has a choice either to deliver them to a police constable as soon as practical or dispose of them if the person thinks that there is good reason to do so. In relation to stolen articles there is also a provision either to deliver those to a police constable or to return them to their owners.

I can understand why the provisions are included. They are included for the sort of reasons that the hon. Gentleman and I often raise: because the Government probably do not want there excessive bureaucracy to fall on those people who confiscate items. For example, the provisions allow the head teacher, teachers or other individuals concerned to return a stolen item—presumably, some minor item that belongs to a pupil or an item in respect of which its ownership is clear—directly to their owner.

I assume also that the provisions in subsection (4) on page 132 are designed to allow a teacher or head teacher who confiscates a small amount of drugs essentially to just flush them down the toilet or dispose of them in a waste paper bin, or by some other process. However, the National Union of Teachers has raised an issue that amendment 359 touches on: whether it is sensible to allow such flexibility and freedom. The note that the NUT provided to the hon. Gentleman and me, and to my colleagues, said that it believes that the Bill

“should restrict the seizure, retention and disposal powers” and that,

“since teachers are not law enforcement officers and therefore, should not be deciding whether to dispose of property they confiscate other than perhaps alcohol”, it is concerned about the provisions, particularly in relation to drugs and also, to some extent, in relation to stolen items.

We did not table a load of amendments ourselves, straight off, because I anticipated the Minister’s response. This is one of the few areas in which the Government do not want to add to the burden of bureaucracy on schools and do not want to end up with some hugely convoluted process whereby a mobile phone that has obviously been stolen from another pupil has to be returned to the local police station, or a tiny fraction of some drug has to be returned to the police, who are likely to be supremely uninterested.

There are serious concerns about the circumstances in which individuals should be returning items to police officers and under what circumstances they should be handing them back. Those circumstances have implications in respect of stolen items—if people are making judgments about who the ownership resides with—and, in respect of drugs, it most certainly has important significance, because if the teacher or head teacher simply retains those drugs, particularly if they have a significant market value, all sorts of accusations may be made against them about improper behaviour.

I invite the Minister, in responding to amendment 359, to say a little bit about the Government’s thinking here and how these discretionary powers should be used.

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

Amendments 354 to 356 relate to the role of school security staff. Collectively, the amendments would allow a member of school security staff to seize items found during a search, even if that member of security staff did not conduct the search, and would restrict the power to seize items found during a search that are suspected of being evidence of an offence to school security staff only.

We have proposed this new legislation to strengthen all schools’ disciplinary authority, not just those with security staff. Removing a teacher’s authority to seize items found during a search, whether those are prohibited or suspected of being evidence of an offence, lessens the effectiveness of this power, which is not something that I wish to see.

The clause enables members of the security staff to undertake a search when the head teacher feels it is appropriate and authorises them to do so. Furthermore, the person undertaking the search should be able to make the decision on how to deal with any items found during that search, whether they are a member of the school teaching staff or security staff. Amendments 359 and 357 would require that where a person seizes anything other than alcohol they must deliver it to a police constable as soon as is reasonably practical. We would not want to restrict the handling of all seized prohibited items in that way, although I agree that that should be required in relation to knives and other offensive weapons. However, I do not agree that that is always necessary or desirable with regard to some stolen articles and controlled drugs. It is appropriate for the person seizing such articles to have discretion about whether to contact the police.

The clause requires that controlled drugs and stolen articles must be delivered to a police constable as soon as it is reasonably practical, unless the person who has seized it considers that there is a good reason not to take that course of action. The hon. Member for Yeovil spoke about drugs. Our Department’s drugs guidance for schools states that the law permits school staff to take temporary possession of a substance suspected of being an illegal drug for the purposes of preventing an offence in relation to that drug being committed or continued, providing all reasonable steps are taken to destroy the drug or deliver it to a person lawfully entitled to take custody of it.

We have anecdotal evidence that many schools simply flush small amounts of drugs down the toilet, rather than involve the police. Our policy intention is to allow that practice to continue. We are also aware that in some areas, schools and police forces have locally agreed protocols for dealing with that sort of issue, and we want those sorts of arrangements to continue. It is also our intention to avoid situations in which the police might be called to a school to deal with trivial incidents, such as a stolen pencil. In coming to their decision, the person will have to have regard for our Department’s guidance and we will ensure that our guidance is clear on that issue.

Amendments 397 and 358 relate to the defence for school staff who act lawfully in confiscating, retaining or disposing of items belonging to pupils. Under the current law, members of staff are required to act lawfully and reasonably in their treatment of pupils. The legislation places the onus on the school staff member to show that the confiscation, retention or disposal of an item is lawful. Seizing, retaining and disposing of a pupil’s property is an infringement of their rights under article 8 and article 1 of protocol 1 of the European convention on human rights. Therefore, any legislation permitting that and providing a defence in the case of damage or loss must be clear, justifiable and proportionate. I am sure that hon. Members would agree that there must remain an overriding obligation on school staff to act lawfully and reasonably. I therefore invite the hon. Member for Bognor Regis and Littlehampton to withdraw the amendment.

Photo of Nick Gibb Nick Gibb Shadow Minister (Education) (Schools) 8:45 am, 26th March 2009

I listened carefully to the Minister’s response to the concerns of the National Union of Teachers—I am sure that its members will either be listening now or will read the transcript later—and I am grateful for that. In the light of that full response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 82, in clause 229, page 133, line 10, at end insert—

‘(1A) In section 94(2) of the Education and Inspections Act 2006 (c.40) (defence where confiscation lawful) leave out “if he proves that the seizure, retention or disposal (as the case may be) was lawful (whether or not by virtue of section 91)” and insert “if the item was prohibited by the published rules of the school.”’.

Photo of Christopher Chope Christopher Chope Conservative, Christchurch

With this it will be convenient to discuss the following: amendment 83, in clause 229, page 133, line 10, at end insert—

‘(1A) In section 93(1) of the Education and Inspections Act 2006 (c.40) (power of member of staff to use force) after subsection (1)(c) there is inserted—

“(d) attempting to leave a room in which the pupil is subject to a disciplinary penalty which consists of the detention of that pupil outside school sessions.”’.

Amendment 92, in clause 229, page 133, line 10, at end insert—

‘(1A) In section 91(6) of the Education and Inspections Act 2006 (c.40) (enforcement of disciplinary penalties) omit paragraph (a).’.

Amendment 93, in clause 229, page 133, line 10, at end insert—

‘(1A) In section 92(3) of the Education and Inspections Act 2006 (c.40) (enforcement of disciplinary penalties) omit paragraph (c).’.

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

In order to make progress, Mr. Chope, I shall not pursue the amendments now.

Photo of Bill Wiggin Bill Wiggin Opposition Whip (Commons)

But we would like to bring them back on Report.

Clause 229 ordered to stand part of the Bill.

Clauses 230 to 232 ordered to stand part of the Bill.